Hillyer v. Midwest Gastrointestinal Assocs. ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/14/2016 09:07 AM CDT
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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.
Cite as 24 Neb. Ct. App. 75
Denice Hillyer, appellant, v. Midwest
Gastrointestinal Associates, P.C., and
Bradley Schroeder, M.D., appellees.
___ N.W.2d ___
Filed June 14, 2016. No. A-15-138.
1. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
2. ____: ____: ____. In a civil case, the admission or exclusion of evi-
dence is not reversible error unless it unfairly prejudiced a substantial
right of the complaining party.
3. Malpractice: Physician and Patient: Proof: Proximate Cause. In
a malpractice action involving professional negligence, the burden of
proof is upon the plaintiff to demonstrate the generally recognized
medical standard of care, that there was a deviation from that standard
by the defendant, and that the deviation was the proximate cause of the
plaintiff’s alleged injuries.
4. Rules of Evidence: Words and Phrases. Pursuant to Neb. Evid. R.
401, Neb. Rev. Stat. § 27-401 (Reissue 2008), relevant evidence means
evidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence.
5. Rules of Evidence. Pursuant to Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by con-
siderations of undue delay, waste of time, or needless presentation of
cumulative evidence.
6. ____. Pursuant to Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue
2008), evidence which is not relevant is not admissible.
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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.
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7. Evidence: Malpractice: Negligence: Informed Consent. Evidence of
risk-of-procedure or risk-of-surgery discussions with the patient is gen-
erally irrelevant and unfairly prejudicial where the plaintiff alleges only
negligence, and not lack of informed consent.
8. Testimony: Appeal and Error. Error in the admission of irrelevant and
inadmissible testimony does not require reversal if the trial court gave a
sufficient curative instruction.
9. Jury Instructions: Presumptions. It is presumed a jury followed the
instructions given in arriving at its verdict, and unless it affirmatively
appears to the contrary, it cannot be said that such instructions were
disregarded.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Greg Garland, of Greg Garland Law, Tara DeCamp, of
DeCamp Law, P.C., L.L.O., and Kathy Pate Knickrehm for
appellant.
Brien M. Welch and David A. Blagg, of Cassem, Tierney,
Adams, Gotch & Douglas, for appellees.
Moore, Chief Judge, and Irwin and Bishop, Judges.
Bishop, Judge.
Denice Hillyer brought a medical malpractice action
against Bradley Schroeder, M.D., and his employer, Midwest
Gastrointestinal Associates, P.C. (MGI), based on alleged neg-
ligence in the course of performing a colonoscopy. The district
court for Douglas County entered judgment on the jury’s ver-
dict in favor of Dr. Schroeder and MGI.
Hillyer appeals, alleging the trial court erred in allowing
evidence of Dr. Schroeder’s discussions with Hillyer and
other patients regarding risks and complications associated
with colonoscopies. We find that under the circumstances of
this case, it was error to allow evidence of such discussions
by Dr. Schroeder, because the medical malpractice action did
not include a claim for lack of informed consent, making
such evidence irrelevant as to whether Dr. Schroeder deviated
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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.
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from the standard of care. However, any error in admitting
such evidence does not constitute reversible error given the
trial court’s curative instruction to the jury. Accordingly,
we affirm.
BACKGROUND
On August 17, 2011, Hillyer went to a medical facility in
Omaha, Nebraska, for a screening colonoscopy. Dr. Schroeder
performed the colonoscopy. During the colonoscopy, Hillyer’s
colon was perforated. As a result of the perforation, Hillyer
required emergency surgery to repair the perforation, was hos-
pitalized for several weeks, and had an ileostomy bag for 51⁄2
months until a subsequent surgery was performed. She had var-
ious other injuries, both physical and emotional, and incurred
more than $300,000 in medical expenses.
Hillyer initially filed a complaint against Dr. Schroeder and
MGI for medical malpractice alleging professional negligence
and lack of informed consent. However, in her amended com-
plaint, Hillyer alleged only professional negligence; her claim
for lack of informed consent had been withdrawn. Specifically,
Hillyer alleged that Dr. Schroeder was negligent because he
used excessive force while performing a colonoscopy on her
and that such excessive force caused the shaft of the “colono-
scope” to perforate her colon.
Hillyer filed a motion in limine asking that the following
matters not be mentioned in the jury’s presence:
15. All medical consent forms, including but not lim-
ited to, consent to treat and perform the colonoscopy. . . .
16. Any discussion that [Hillyer] was aware of the risks
and complications of colonoscopies. . . .
17. Any discussion regarding the practice and/or rou-
tine of explaining risks of procedures to patients.
Hillyer sought exclusion of the above matters on the basis of
“NRE 402 Relevance, 403 Relevance outweighed.” In their
amended response to Hillyer’s motion in limine, Dr. Schroeder
and MGI did not object to paragraph 15. They did however
object to paragraphs 16 and 17, arguing:
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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.
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This evidence is relevant to establish the facts and cir-
cumstances leading to the perforation in this case. The
average layperson has undergone a medical procedure
and has experienced an informed consent discussion with
his/her physician. Accordingly, members of the jury may
be led to incorrectly infer that such a conversation did
not occur in this matter between Dr. Schroeder and
[Hillyer] if Dr. Schroeder is prohibited from discussing
that such a conversation did occur prior to the proce-
dure. Additionally, this discussion is relevant to estab-
lishing the facts and circumstances of the procedure at
issue and Dr. Schroeder’s recollection of his interactions
with [Hillyer].
During a hearing on the motion in limine, the trial court sus-
tained Hillyer’s motion with regard to paragraph 15, citing no
objection by Dr. Schroeder or MGI. However, the trial court
reserved ruling on paragraphs 16 and 17.
During the jury trial, the only real issues were whether Dr.
Schroeder used excessive force during Hillyer’s colonoscopy
(thereby deviating from the standard of care) and, if so, the
extent of Hillyer’s damages. Hillyer testified regarding the
injuries she sustained, the treatment she underwent, and the
damages she incurred as a result of her perforated colon.
Hillyer’s expert, Dr. Mark Molos, testified that the stan-
dard of care requires a physician performing a colonoscopy to
“advance the scope under the appropriate amount of exertion or
pressure.” Based on his review of the case, Dr. Molos opined
that Dr. Schroeder breached the standard of care by applying
excessive force and pressure, which resulted in a “shaft loop”
perforation of Hillyer’s colon. Dr. Molos testified that “[a]
shaft loop perforation by definition is caused by excessive
pressure and force.” He also opined that only excessive force
would cause a perforation the size that Hillyer had, which was
6 to 7 centimeters. On cross-examination, Dr. Molos agreed
that just because a patient has a medical complication does
not mean that the doctor fell below the standard of care, that
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complications can and do occur even when the doctor provided
excellent care, and that perforations can occur even when the
doctor is meeting the standard of care.
Dr. Schroeder’s expert, Dr. Alan Thorson, testified that
perforations are a known and accepted complication of colo-
noscopies and that a colon perforation can occur even when
the best medical care is provided. Dr. Thorson disagreed with
Dr. Molos’ testimony that a large perforation like Hillyer’s
could have occurred only due to excessive force. Dr. Thorson
opined that Hillyer’s abdominal adhesions were a proximate
cause of her perforation. According to Dr. Thorson, adhesions
can hold the colon in a more fixed position, and when doing
a colonoscopy, the endoscopist “can end up with a pressure
against the colon that’s enhanced because of the fixation of the
adhesions even though [the endoscopist] might be putting very
acceptable pressure [sic]”; the endoscopist might not even feel
resistance when advancing the scope. Based on his review of
the case, Dr. Thorson opined that Dr. Schroeder met the stan-
dard of care and did not use excessive force while performing
Hillyer’s colonoscopy.
Both experts had their credibility challenged. For example,
Dr. Molos was questioned regarding his honesty, personal his-
tory of being sued for malpractice, and long history of testify-
ing in medical malpractice cases (usually on behalf of plain-
tiffs). And Dr. Thorson was questioned regarding potential bias
in favor of Dr. Schroeder due to patient referrals.
Dr. Schroeder testified regarding the steps he takes before
doing colonoscopies: He meets the patients, gets their health
histories, does a physical examination, and then begins the con-
sent process. Over Hillyer’s repeated objections, Dr. Schroeder
was allowed to testify that with every patient, he goes through
the list of complications and risks for the procedure, including
perforations and the potential need for surgery, the alterna-
tives, and the fact that a patient does not even have to do the
examination. Hillyer also objected to Dr. Schroeder’s testi-
mony that he goes through the same process every time and
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has had patients refuse the procedure after discussion. Dr.
Schroeder was further allowed to testify, over objection, that
he discussed potential complications and risks, including per-
foration and the potential need for surgery, with Hillyer prior
to her colonoscopy.
Dr. Schroeder testified that he did not encounter resistance
while performing Hillyer’s colonoscopy and did not use exces-
sive force to advance the colonoscope. He stated he met the
standard of care when he performed Hillyer’s colonoscopy.
The jury returned a unanimous verdict in favor of Dr.
Schroeder and MGI, and the court entered judgment accord-
ingly. Hillyer timely appeals.
ASSIGNMENTS OF ERROR
Hillyer assigns that the trial court abused its discretion
and committed prejudicial error in allowing evidence of Dr.
Schroeder’s discussions with Hillyer and other patients regard-
ing risks and complications associated with colonoscopies.
STANDARD OF REVIEW
[1] A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
that discretion. Gallner v. Larson, 291 Neb. 205, 865 N.W.2d
95 (2015).
[2] In a civil case, the admission or exclusion of evidence is
not reversible error unless it unfairly prejudiced a substantial
right of the complaining party. In re Estate of Clinger, 292
Neb. 237, 872 N.W.2d 37 (2015).
ANALYSIS
[3] In a malpractice action involving professional negli-
gence, the burden of proof is upon the plaintiff to demonstrate
the generally recognized medical standard of care, that there
was a deviation from that standard by the defendant, and
that the deviation was the proximate cause of the plaintiff’s
alleged injuries. Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d
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460 (2008). In the instant case, there was no dispute that
Hillyer’s colon was perforated during a colonoscopy performed
by Dr. Schroeder. The only real issues at trial were whether Dr.
Schroeder used excessive force during Hillyer’s colonoscopy
(thereby deviating from the standard of care) and, if so, the
extent of Hillyer’s damages.
As stated above, prior to trial, Hillyer filed a motion
in limine to exclude evidence of any discussions (with Dr.
Schroeder) that she was aware of the risks and complications
of colonoscopies and any discussion regarding the practice
or routine of explaining risks of procedures by Dr. Schroeder
with his patients. The reasons cited in Hillyer’s motion were
“NRE 402 Relevance, 403 Relevance outweighed.” At the
hearing on the motion, the trial court reserved ruling as to
these discussions. In its order on the motion in limine, which
was not filed until the day after the jury returned its verdict
in the case, the court said it had reserved ruling as to these
discussions but “sustained as to the actual consent form and
phrases contained in medical records stating ‘After receiving
informed consent.’”
[4-6] Pursuant to Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 2008), “[r]elevant evidence means evidence having
any tendency to make the existence of any fact that is of con-
sequence to the determination of the action more probable or
less probable than it would be without the evidence.” However,
relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation
of cumulative evidence.” Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008). Evidence which is not relevant is
not admissible. Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402
(Reissue 2008).
During trial, Dr. Schroeder was allowed to testify, over
Hillyer’s repeated objections, regarding his discussions with
Hillyer about the risks and complications of colonoscopies
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and regarding his practice or routine of explaining risks of
procedures to his patients. These are the “discussion[s]” which
were at issue in Hillyer’s motion in limine and on which the
trial court had reserved making a ruling. As discussed next, we
conclude it was error to allow such testimony.
Although this is a case of first impression in Nebraska, cases
from other jurisdictions suggest that evidence of informed con-
sent and risk-of-surgery discussions is irrelevant and unfairly
prejudicial where a plaintiff alleges only negligence, and not
lack of informed consent. By our count, eight states have
addressed the issue. Of those eight, one state specifically dealt
with risk-of-surgery discussions, rather than consent forms.
See Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004). Six
states dealt with evidence of both risk-of-surgery discussions
and consent forms. See, Hayes v. Camel, 283 Conn. 475, 927
A.2d 880 (2007); Matranga v. Parish Anesthesia of Jefferson,
170 So. 3d 1077 (La. App. 2015); Schwartz v. Johnson, 206
Md. App. 458, 49 A.3d 359 (2012); Waller v. Aggarwal, 116
Ohio App. 3d 355, 688 N.E.2d 274 (1996); Warren v. Imperia,
252 Or. App. 272, 287 P.3d 1128 (2012); Brady v. Urbas, 111
A.3d 1155 (Pa. 2015). And one state dealt solely with evidence
of the actual consent forms in a negligence action. See Baird
v. Owczarek, 93 A.3d 1222 (Del. 2014). All of the aforemen-
tioned cases found the evidence inadmissible.
In Wright v. Kaye, supra, a patient brought a medical mal-
practice action against her surgeon, alleging he negligently
performed a procedure. The patient filed a motion in limine
seeking to exclude any testimony regarding preoperative dis-
cussions between her and her surgeon concerning the risks of
surgery. The patient argued that because she did not claim the
surgeon failed to obtain her informed consent, any testimony
concerning discussion of the risks of surgery was not relevant
to either negligence or causation and would only confuse the
jury. The trial court denied the motion, ruling, “‘If you don’t
show that [the doctor advised the patient concerning any risk
prior to surgery], immediately you’ve implied that maybe this
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doctor is negligent to begin with.’” Id. at 528, 593 S.E.2d at
317. On appeal, the Virginia Supreme Court determined that
under the facts of that case, the trial court’s ruling was errone-
ous. The Virginia Supreme Court stated:
In resolving this issue, it is a particularly salient fact that
[the patient] does not plead or otherwise place in issue
any failure on the part of the [surgeon] to obtain her
informed consent. Her claim is simply that [the surgeon]
was negligent by deviating from the standard of care in
performing the medical procedure at issue.
Seen in that context, evidence of information conveyed
to [the patient] concerning the risks of surgery in obtain-
ing her consent is neither relevant nor material to the
issue of the standard of care. Further, the pre-operative
discussion of risk is not probative upon the issue of
causation: whether [the surgeon] negligently performed
the procedure.
[The patient’s] awareness of the general risks of sur-
gery is not a defense available to [the surgeon] against the
claim of a deviation from the standard of care. While [this
patient] or any other patient may consent to risks, she
does not consent to negligence. Knowledge by the trier of
fact of informed consent to risk, where lack of informed
consent is not an issue, does not help the plaintiff prove
negligence. Nor does it help the defendant show he was
not negligent. In such a case, the admission of evidence
concerning a plaintiff’s consent could only serve to con-
fuse the jury because the jury could conclude, contrary to
the law and the evidence, that consent to the surgery was
tantamount to consent to the injury which resulted from
that surgery. In effect, the jury could conclude that con-
sent amounted to a waiver, which is plainly wrong. See
Waller v. Aggarwal, 116 Ohio App. 3d 355, 688 N.E.2d
274, 275-76 (1996).
Wright v. Kaye, 267 Va. 510, 528-29, 593 S.E.2d 307, 317
(2004). Accordingly, the Virginia Supreme Court held that the
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trial court erred in failing to grant the motion in limine regard-
ing preoperative discussions concerning the risks of surgery.
The court reversed the summary judgment in favor of the sur-
geon and remanded the cause for further proceedings.
In Hayes v. Camel, 283 Conn. 475, 927 A.2d 880 (2007),
the patient filed a medical malpractice action against a neu-
rosurgeon and his assistant based on alleged negligence in
the course of performing a surgery. The patient filed numer-
ous motions in limine seeking to preclude the admission of
documentary or testimonial evidence pertaining to informed
consent and preclude any discussion or argument pertaining
to his injuries as a “‘“risk of the procedure.”’” Id. at 480,
927 A.2d at 885. The trial court denied the motions. At trial,
the court did not permit the words “informed consent” to be
used, and it refused to admit the consent forms into evidence.
On appeal, the plaintiff claimed that the trial court improp-
erly denied his motions in limine to preclude, and overruled
his objections to, the admission of evidence that included (1)
the surgeon’s testimony that he informed the plaintiff that
nerve damage was a risk of the surgery and (2) notes to that
effect from the preoperative consultation between the plaintiff
and the surgeon. The sole issue on appeal was whether, in a
medical malpractice action without a claim of lack of informed
consent, the trial court properly admitted testimonial and docu-
mentary evidence that the defendant surgeon had informed his
patient of the risks of the medical procedure in question. The
Connecticut Supreme Court, after citing Wright v. Kaye, supra,
and Waller v. Aggarwal, 116 Ohio App. 3d 355, 688 N.E.2d
274 (1996), said:
We conclude that the trial court abused its discretion
when it admitted evidence of the risks of the [surgery] in
the form of their disclosure to the plaintiff. The admis-
sion of evidence that [the surgeon] had told the plaintiff
of those risks, namely, his testimony and the office notes
to that effect, implicates the concerns about jury confu-
sion raised by our sister state courts that have considered
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the issue of the admissibility of informed consent evi-
dence in medical malpractice cases without informed
consent claims. See Conn.Code Evid. § 4-3. Put differ-
ently, admission of testimony about what the plaintiff
specifically had been told raised the potential that the
jury might inappropriately consider a side issue that is not
part of the case, namely, the adequacy of the consent. . . .
[I]t was unduly prejudicial to admit such evidence [of the
risks of a surgical procedure] in the context of whether
and how they were communicated to the plaintiff. Rather,
such evidence is properly admitted, without this risk of
confusion and inappropriate prejudice, in the form of, for
example, testimony by the defendants or nonparty expert
witnesses about the risks of the relevant surgical proce-
dures generally.
Hayes v. Camel, 283 Conn. 475, 487-88, 927 A.2d 880, 889-
90 (2007). Accordingly, the Connecticut Supreme Court con-
cluded that the trial court improperly admitted the challenged
evidence pertaining to whether the risks of the procedure were
communicated to the plaintiff. However, the court found that
such error was harmless because
the trial court’s charge to the jury specifically addressed
the relationship of surgical risk and negligence, and stated
that “simply because a particular injury is considered to
be a risk of the procedure does not mean that a physician
is relieved of the duty of adhering to the appropriate stan-
dard of care and does not mean that because the injury
was a risk of the procedure injury did not result from a
failure to conform to the standard of care.”
Id. at 491-92, 927 A.2d at 892. The Connecticut Supreme
Court presumed that the jury followed the instruction, thereby
mitigating the prejudice and risks of inappropriate inferences
attendant to the improperly admitted evidence.
We note that the approach among other jurisdictions is to
find that evidence of informed consent and risk-of-surgery
discussions is generally irrelevant where a plaintiff alleges
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only negligence; they then state that even if relevant, the
evidence is prejudicial. Other jurisdictions have generally
not adopted a per se rule of exclusion. As noted by the
Pennsylvania Supreme Court in Brady v. Urbas, 111 A.3d
1155 (Pa. 2015), sometimes the evidence may be relevant
to the question of negligence, if, for example, the standard
of care requires that the doctor discuss certain risks with the
patient. And in Viera v. Cohen, 283 Conn. 412, 927 A.2d 843
(2007), the patient’s negligence claim was based in part on the
doctor’s failure to properly assess her risk factors. On appeal,
the doctor claimed that the trial court improperly allowed the
patient’s expert to testify, over the doctor’s relevancy objec-
tion, as to the patient’s lack of informed consent when there
was no informed consent claim in the case. The Connecticut
Supreme Court found that even though the patient did not
assert a lack of informed consent claim, the testimony was
directly relevant to the patient’s claim that the doctor failed
to recognize that the patient’s delivery presented a risk of
shoulder dystocia (i.e., when the baby’s shoulders become
lodged during a vaginal delivery requiring delivery of the
child within minutes to avoid risk of neurological injury or
death). The court said that if, as the patient’s experts had tes-
tified, the standard of care would have obligated the doctor
to discuss the risks of vaginal delivery with her, the doctor’s
failure to do so would provide evidence that he had not in fact
recognized that those risks were present. The court concluded
that the trial court did not abuse its discretion in concluding
that the testimony was relevant. Moreover, the trial court in
Viera expressly instructed the jury that informed consent was
not an issue in the case.
[7] We hold, as a matter of first impression, that evidence
of risk-of-procedure or risk-of-surgery discussions with the
patient is generally irrelevant and unfairly prejudicial where
the plaintiff alleges only negligence, and not lack of informed
consent. However, we specifically decline to adopt a per se
rule of exclusion. Given our holding, which is in accord with
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other state courts, we now turn our analysis to the facts of the
case before us.
The trial court allowed Dr. Schroeder to testify over objec-
tion that prior to performing a colonoscopy, it is his practice
to talk to his patient about complications of the procedure and
specifically list the risks and complications, including perfora-
tion and the potential need for surgery. He testified:
I give the same consent every single time because you’re
required — there’s basic elements of that requirement that
you just have to include every time, risks, benefits, alter-
natives. And even the fact that they don’t have to do the
exam and there’s other things they can do to get screened
for colonoscopy [sic].
At that point, Hillyer’s counsel requested a sidebar, during
which the following discussion was had:
[Hillyer’s counsel]: Your Honor, we object to this
line of questioning for the reasons stated, 402, 403,
the motion in limine, and now he’s also going — he’s
also using the word “consent” and going into that and
we already have a sustained motion in limine regarding
informed consent.
[Defense counsel]: Your Honor, I think I’m following
the motion in limine. We’ve already discussed this. He’s
not — if the witness was permitted to testify, he would
say he actually goes for the statistical rate of perforation.
But following the Court’s order, he’s not going to talk
about that. But he has to be able to talk about how he
talks to his patients and gets their permission before they
undergo a procedure, and he does it every time with all
of the colonoscopies. This is part of his normal practice.
And I — they certainly went into it with their expert,
and I did on cross-examination. It’s a known risk of the
procedure. So I don’t know how I can’t elicit that from
my client.
THE COURT: I think the issue that we are address-
ing has to do with him using the word “consent.” I think
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when we were discussing this in the motion in limine it
was going to what the risks are and things of that nature,
but we need to avoid any implication that she somehow
consented to all of these risks by going through with
the procedure. And I think that’s in the rulings that have
come out in other jurisdictions and other states. So as far
as the motion in limine, the portion of the actual medical
records that is the signed consent form is out, and that
one phrase in the medical ruling it says after I received
informed consent.
What I would say at this point on the objection is to
try and steer clear of using the word “consent” when
he’s talking about going through the risks and things of
that nature.
....
. . . [W]hat we’re trying to avoid here are some of the
issues that have come up that we’ve discussed as far as
there being some insinuation to the jury that she somehow
assumed the risk of going through this procedure. Getting
away from the actual issue of the case which is whether
or not there was excessive force. . . .
[Defense counsel]: After he explains this to the patient
and they understand it, because he’s not — I don’t want
them to get the implication that he says all this to them
and they don’t have a choice, that they have to do this.
Can he say after I explain this I make sure they under-
stand it?
THE COURT: I don’t think there’s a problem with say-
ing make sure they understand it. But when you get into
saying they had a choice to do it or not to do it, I think
we get into the issue that they somehow consented to all
of the risks.
[Defense counsel]: Maybe the solution to all of this
is maybe an instruction to the jury that you can say
the patient — we can formulate one, to say that they
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consented to the procedure does not mean that they con-
sented to — that the physician would be below the stan-
dard of care in performing the procedure.
[Hillyer’s counsel]: It’s the word “consent.” Move to
strike, and ask the jury to disregard — just instruct them
to disregard the use of the word “consent” if he’s getting
really close to the consent form.
After the sidebar, the court struck Dr. Schroeder’s statement,
“‘I give the same consent every single time,’” and instructed
the jury to disregard the same.
Direct examination of Dr. Schroeder resumed as follows:
[Defense counsel:] Doctor, since your fellowship and
through your practice, do you meet with your patients and
explain to them — regardless of what the procedure is, if
it’s an endoscopy, colonoscopy, ERCP, do you try to sit
down with them and have them understand the procedure
that you’re about to perform?
[Hillyer’s counsel]: Objection. 402, 403 again.
THE COURT: Overruled.
[Hillyer’s counsel]: Motion in limine.
THE COURT: Overruled.
[Dr. Schroeder:] I don’t think that I can proceed with
an exam unless the person undergoing the procedure or
those responsible for them truly understand what they’re
getting involved in.
....
[Defense counsel:] And as it relates to a colonoscopy,
one of the things that you try to get the patient to under-
stand is that there are potential complications with that
procedure. Is that fair?
[Hillyer’s counsel]: Objection. 402, 403, motion in
limine.
THE COURT: Overruled.
[Dr. Schroeder:] I do try to make sure that the patient
understands those complications.
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[Defense counsel:] Okay. And as it relates to perfora-
tions, do you try to get the patient to understand that that
is a potential complication of the procedure?
[Dr. Schroeder:] Very much so.
[Hillyer’s counsel]: Objection. 402, 403, motion in
limine, and move to strike.
THE COURT: Overruled.
[Defense counsel:] And is a part of that attempt, talk
to that patient so that they understand? I think you men-
tioned earlier to a question that one of the things that
you do, you mention to the patient the potential that
a perforation may occur and might require surgery; is
that fair?
[Hillyer’s counsel]: Objection. 402, 403, motion in
limine.
THE COURT: Overruled.
At that point, Hillyer’s counsel requested another sidebar, dur-
ing which the following discussion was had:
[Hillyer’s counsel]: This needs to stop. We’re get-
ting way — we’re just spending this time on all of this
stuff he tells the patients. Why don’t you get to the
colonoscopy?
THE COURT: What’s the objection?
[Hillyer’s counsel]: The objection is 402, 403, rel-
evance, motion in limine. We’re getting right to the heart
of the thing we’ve dealt with all the time about this same
issue. This is not a case about informed consent. We
understand that. Let’s move it.
....
THE COURT: This brings up a lot of the arguments
that were made at our pretrial motions, one of them
being that I understand the informed consent part of
it. I understand not getting into some insinuation to
the jury that she somehow consented to this procedure;
therefore, you just have to deal with whatever happens.
The problem that I see at this point is . . . Hillyer’s own
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testimony that she doesn’t even remember talking to
the doctor before the procedure at all. So that brings up
some of this issue as far as what even happened during
the procedure.
So while I understand we need to get to the heart of
the matter, the objection is overruled in that he’s just
explaining generally that he goes through the risks. He’s
been told not to mention anything with regard to consent.
And I would expect that Counsel is not going to argue in
any way that she somehow consented to what happened
to her. And . . . I would ask for both sides to submit a
jury instruction so I can see the language that you would
like the Court to consider with regards to just because
she went through with this procedure doesn’t mean she
somehow consented to this happening to her or that it
somehow negates professional responsibility.
After the sidebar concluded, Dr. Schroeder was allowed to
testify, over objection, that it is his “custom and practice to
repeat the same discussion for every colonoscopy with every
patient every time.” He was also allowed to testify, over objec-
tion, “I ask the patient after my discussions with them if they
still wish to proceed with the examination. And, yes, patients
have said they didn’t want to do the exam at that point, got
their clothes on, went home.”
Dr. Schroeder also testified about his discussions with
Hillyer:
[Defense counsel:] Would you have had a discussion
consistent with what you’ve already testified to with . . .
Hillyer about the colonoscopy and the procedure that you
were about to perform and the potential complications
and risk are[a]s of the procedure?
[Dr. Schroeder:] Yes.
[Hillyer’s counsel]: Objection. 402, 403, motion in
limine, move to strike and instruct the jury to disregard.
THE COURT: Objection is overruled. The answer
will stand.
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[Dr. Schroeder:] At the completion of this physical
examination I then discussed the risks, benefits, options,
complications of the examination as well as the sedation.
[Defense counsel:] And would that have included, as
you discussed earlier as is your custom and habit the
thousands of times that you have done it, concerning a
potential for a perforation and the potential need for sur-
gery if that in fact resulted?
[Dr. Schroeder:] Yes.
[Hillyer’s counsel]: Objection. 402, 403, motion in
limine, move to strike and instruct the jury to disregard.
THE COURT: Objection is overruled. The answer
will stand.
We first focus on Dr. Schroeder’s testimony as it relates to
discussions he had with Hillyer specifically. Dr. Schroeder and
MGI argue:
Evidence that a perforation is a known risk of a colo-
noscopy and can occur even when a physician is com-
plying with the standard of care is obviously relevant.
It is, in fact, necessary in order that the jury not find
[Dr. Schroeder and MGI] negligent solely because of
the perforation.
Brief for appellees at 19. We agree. However, the problem
occurs when evidence of the risks comes in the form of their
disclosure to the plaintiff. See Hayes v. Camel, 283 Conn. 475,
927 A.2d 880 (2007). When evidence of the risks comes in
the form of their disclosure to the patient (i.e., that a patient
was informed of the risks), such evidence goes toward the
patient’s consent to the procedure, not negligence. In cases
where consent is not at issue, evidence of what a patient was
told raises the potential that the jury might inappropriately
consider consent. To avoid confusion and inappropriate preju-
dice, evidence of the risks of a procedure is instead properly
admitted in the form of general testimony by the defendants
or nonparty expert witnesses. Id. The defendant or nonparty
expert witnesses can testify about the risks of the relevant
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surgical procedures generally (e.g., that perforations are a
risk of colonoscopies), but cannot testify that the patient was
informed of such risks prior to the procedure. In this manner,
the jury hears evidence that something is a risk of a proce-
dure, and is less likely to wrongly assume that the doctor was
negligent just because something bad happened. But the jury
will also not hear evidence that the patient was informed of
the risk, and thus will not be likely to inappropriately consider
consent—that if the patient consented to the procedure, he or
she somehow consented to any negligence. And in the present
case, experts on both sides did testify that perforations can
occur even when a physician is complying with the standard of
care; such testimony was proper.
However, testimony given by Dr. Schroeder relating to dis-
cussions he had with Hillyer is exactly the kind of testimony
that courts in other jurisdictions have found to be irrelevant
and unfairly prejudicial, given that Hillyer alleged only negli-
gence, and not lack of informed consent. In the present case,
the jury had to determine whether Dr. Schroeder used exces-
sive force during Hillyer’s colonoscopy (thereby deviating
from the standard of care). Evidence of information conveyed
to Hillyer concerning the risks of the procedure, including per-
forations, had no bearing on the issue of the standard of care.
See Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004). “Put
simply, what plaintiff was told bears no relationship to what
defendant should have done.” Warren v. Imperia, 252 Or. App.
272, 280, 287 P.3d 1128, 1132 (2012). Furthermore,
[e]vidence that plaintiff was told about the risks of sur-
gery raised the possibility that the jury might consider
whether plaintiff assumed the risks of the surgery or
consented to defendant’s negligence. In other words, the
evidence had a significant potential to confuse the jury or
lead it to decide the case on an improper basis.
Id. at 281, 287 P.3d at 1132-33.
The fact that the trial court did not permit Dr. Schroeder
to use the word “consent” is of no import in our final
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determination; nor is the fact that the trial court granted
Hillyer’s motion in limine with regard to the actual consent
forms. See Hayes v. Camel, 283 Conn. 475, 927 A.2d 880
(2007) (concluding trial court abused its discretion in admit-
ting evidence of risks of surgery in form of their disclosure to
plaintiff despite trial court’s not permitting words “informed
consent” to be used and refusing to admit consent forms into
evidence). Nor are we persuaded by the trial court’s reasoning
that “Hillyer’s own testimony that she doesn’t even remember
talking to [Dr. Schroeder] before the procedure at all . . . brings
up some of this issue as far as what even happened during the
procedure.” Again, what happened before the procedure with
regard to discussion of risks has no bearing on whether or
not Dr. Schroeder used excessive force during the procedure.
Furthermore, Hillyer was not questioned on direct examina-
tion about conversations she had with Dr. Schroeder; testimony
regarding Hillyer’s memory of preprocedure discussions came
in during cross-examination and referenced her deposition
testimony, which was not received into evidence or otherwise
before the jury.
We note that in their brief, Dr. Schroeder and MGI argue
that Hillyer’s “specific objection” at trial was to the word “con-
sent” and that she now “attempts to expand the objection from
‘consent’ to the fact that [she] was informed of the risks of
surgery.” Brief for appellees at 15-16. A complete review of the
record shows that Hillyer is not expanding her objection. After
Dr. Schroeder testified that he “give[s] the same consent every
single time,” Hillyer requested a sidebar and objected based on
“402, 403, the motion in limine.” After further discussion on
the matter, she did object to the word “consent.” Throughout
the remainder of Dr. Schroeder’s testimony regarding discus-
sion of risks, Hillyer repeatedly objected, citing “402, 403,”
and the motion in limine. Hillyer’s motion in limine, particu-
larly paragraphs 16 and 17, sought to exclude any discussion
that Hillyer was aware of the risks and complications of the
colonoscopies and any discussion regarding the practice or
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routine of explaining risks of procedures to patients. The rea-
sons cited in Hillyer’s motion were “NRE 402 Relevance, 403
Relevance outweighed”; these were the same objections raised
by Hillyer at trial. Hillyer has not expanded her objection
on appeal.
Dr. Schroeder and MGI further argue that given “the context
of this case,” brief for appellees at 20, the trial judge was cor-
rect in admitting testimony that Hillyer was informed of the
risks. They argue that a “theme pressed by [Hillyer] at trial,
starting in voir dire, was the mental aspect of her surprise in
awaking in the hospital after the colonoscopy” and that Hillyer
“questioned [potential jurors] in a fashion to imply to the
jury that it was highly unusual for a person not to go home
immediately following a colonoscopy,” such that Hillyer’s
knowledge of possible complications should be allowed. Id.
They also cite to exhibits placed into evidence (i.e., medical
records from Hillyer’s surgeries following her colonoscopy);
those records included statements that Hillyer was informed of
the risks of surgery and decided to proceed. Our review of the
record reveals no “mental aspect of . . . surprise” on Hillyer’s
part. See brief for appellees at 20. Hillyer’s questioning during
voir dire was benign and reveals nothing other than counsel’s
efforts to learn of potential jurors’ experiences with colonos-
copies, ferret out possible bias, and acquire a fair jury pool.
Finally, nothing in the medical records regarding Hillyer’s
subsequent surgeries with other doctors placed Dr. Schroeder’s
discussions with Hillyer regarding the colonoscopy in issue.
See Fiorucci v. Chinn, 288 Va. 444, 764 S.E.2d 85 (2014)
(finding that trial court did not err in excluding from evidence
defendant doctor’s risk-of-surgery discussions with patient,
even though one of expert witnesses referred to discussions
with his own patient). In sum, nothing in the record before us
persuades us to deviate from the general rule that evidence of
risk-of-procedure or risk-of-surgery discussions is irrelevant
where a plaintiff alleges only negligence, and not lack of
informed consent.
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We find that under the facts of this case, any discussion
that Dr. Schroeder informed Hillyer of the risks and compli-
cations of colonoscopies was neither relevant nor material
to the issue of whether Dr. Schroeder used excessive force
during Hillyer’s colonoscopy, and therefore, the discussions
were inadmissible. See §§ 27-401 and 27-402. For the same
reasons, we find that evidence of Dr. Schroeder’s discussions
with his other patients regarding risks and complications asso-
ciated with colonoscopies was improperly admitted, because
such discussions go to the issue of consent, not negligence.
In particular, Dr. Schroeder’s testimony that some patients,
after having risk discussions with him, have decided not to
proceed with the examination could lead a jury to improperly
conclude that because Hillyer did proceed with the procedure,
she somehow consented to negligence or waived a claim
of negligence.
[8,9] Having concluded that admission of such evidence
was erroneous, we now consider whether its admission
requires reversal. In a civil case, the admission or exclusion
of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party. In re Estate of
Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). The admis-
sion of Dr. Schroeder’s irrelevant and inadmissible testimony
regarding risk-of-procedure discussions was prejudicial as
previously discussed; however, under the circumstances of
this case, such error does not require reversal, because the
trial court gave a sufficient curative instruction. As we noted
earlier, in Hayes v. Camel, 283 Conn. 475, 491-92, 927 A.2d
880, 892 (2007), although the Connecticut Supreme Court
concluded that it was unduly prejudicial to admit evidence
of the risks of a surgical procedure in the context of whether
and how they were communicated to the plaintiff, the court
nevertheless held that “the trial court’s charge to the jury
specifically addressed the relationship of surgical risk and
negligence,” by noting that the mere fact a particular injury is
a risk of a procedure does not mean it “‘did not result from
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a failure to conform to the standard of care.’” Similarly here
in the case before us, the trial court’s instructions to the jury
specifically addressed the relationship of the risks of the pro-
cedure and negligence; they stated:
A healthcare provider has the duty to possess and use
the care, skill, and knowledge ordinarily possessed and
used under like circumstances by other healthcare provid-
ers engaged in a similar practice in the same or similar
communities.
The fact that a patient goes through with a procedure
having been advised of the risks of such procedure does
not change or alter the duty of the health care provider
to possess and use the care, skill and knowledge ordinar-
ily possessed and used under like circumstances by other
healthcare providers engaged in a similar practice in the
same or similar communities.
(Emphasis supplied.) In Hayes v. Camel, supra, the Connecticut
Supreme Court presumed the jury followed the instruction,
thereby mitigating the prejudice and inappropriate inferences
attendant to the improperly admitted evidence. We conclude
the same here. See, also, Simon v. Drake, 285 Neb. 784, 829
N.W.2d 686 (2013) (certain testimony prejudicial and not
harmless; no curative instruction given); Baker v. Racine-
Sattley Co., 86 Neb. 227, 233, 125 N.W. 587, 590 (1910)
(finding that court’s instruction to jury to disregard certain
testimony cured any error in case at bar, but recognizing that
“in some cases error in the reception of incompetent evidence
cannot be cured by an instruction to the jury to disregard
it”). It is presumed a jury followed the instructions given in
arriving at its verdict, and unless it affirmatively appears to
the contrary, it cannot be said that such instructions were dis-
regarded. In re Estate of Clinger, supra. There is nothing in
the record before us to affirmatively show that the jury disre-
garded the instruction above; further, in the present case, two
competing experts testified as to whether Dr. Schroeder used
excessive force (thereby deviating from the standard of care),
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and it was for the jury to decide which one to believe. Both
experts testified that perforations were a risk of the procedure;
each differed in his testimony as to whether the perfora-
tion which occurred during Hillyer’s colonoscopy was caused
by excessive force. Although we conclude that the curative
instruction in this case sufficiently mitigated the prejudice of
the improperly admitted evidence, particularly in light of the
other evidence available to the jury to reach its conclusion, we
caution that curative instructions may not always overcome
the prejudice and reversal may be warranted. See Baker v.
Racine-Sattley Co., supra.
CONCLUSION
For the foregoing reasons, we find that under the circum-
stances of this case, it was error to allow evidence of Dr.
Schroeder’s risk discussions with Hillyer and other patients.
However, any error in admitting that evidence does not consti-
tute reversible error given the trial court’s curative instruction
to the jury. Accordingly, we affirm.
A ffirmed.