Millsap v. Williams

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SUPREME COURT OF ARKANSAS
No. CV-13-986
NANCY MILLSAP, AS THE SPECIAL Opinion Delivered November 13, 2014
ADMINISTRATOR OF THE ESTATE
OF ROBERT NASH, DECEASED APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT, NINTH
DIVISION
V. [NO. 60CV-11-1601]
VICTOR WILLIAMS, M.D. HONORABLE MARY SPENCER
APPELLEE MCGOWAN, JUDGE
REVERSED AND REMANDED.
PAUL E. DANIELSON, Associate Justice
Appellant Nancy Millsap, as the Special Administrator of the Estate of Robert Nash,
Deceased, appeals the judgment of the Pulaski County Circuit Court entered in favor of
Appellee Victor Williams, M.D. On appeal, Millsap argues that (1) the circuit court abused
its discretion by providing erroneous and misleading instructions to the jury concerning
consent; and (2) that there was sufficient evidence from which the jury could have found that
Robert Nash suffered injury as a result of undergoing a nasogastric procedure performed
without proper consent. This court assumed jurisdiction of the instant appeal as involving
issues needing clarification or development of the law; hence, our jurisdiction is pursuant to
Arkansas Supreme Court Rule 1-2(b)(5) (2014). For the reason explained herein, we reverse
and remand.
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Robert Nash, the father of Millsap, was diagnosed with colon cancer and was referred
to Dr. Williams for surgery to remove the cancerous part of his colon. Dr. Williams admitted
Mr. Nash to Baptist Medical Center in Little Rock on November 1, 2009. The next day
Dr. Williams performed surgery and removed part of Mr. Nash’s colon. On November 4,
2009, Dr. Williams ordered placement of a nasogastric (“NG”) tube, but Mr. Nash refused
the tube several times. On November 6, 2009, after Mr. Nash twice refused the tube,
Dr. Williams placed the NG tube and, shortly thereafter, Mr. Nash started showing signs of
medical distress and was transferred to a critical care unit for treatment. Mr. Nash remained
hospitalized until his discharge on January 7, 2010. According to the allegations in Millsap’s
complaint, Mr. Nash required constant care and attention following his discharge until the
date of his death on September 4, 2010.
Millsap filed a wrongful-death suit against Dr. Williams on April 4, 2011, alleging that
he placed an NG tube against Mr. Nash’s expressed wishes, and that he placed it improperly,
thereby causing Mr. Nash to aspirate and eventually causing him to suffer hypoxic brain
injury. In her complaint, Millsap alleged that the negligence of Dr. Williams was a proximate
cause of serious and permanent injury to Mr. Nash. She sought damages and demanded a jury
trial. An amended complaint was filed on May 23, 2013, adding claims that Dr. Williams
placed an NG tube in a patient who was not mentally competent during the procedure and
that Dr. Williams failed to obtain consent from Millsap to place the NG tube.
A jury trial was held July 8 though July 11, 2013. Yuris Gaunt, a nurse who helped
care for Mr. Nash after his surgery, testified that on November 6, 2009, she talked with
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Mr. Nash about placing an NG tube because Dr. Williams had ordered one on November 4,
2009. She documented in Mr. Nash’s chart that he refused the NG tube. Gaunt recalled that
Mr. Nash was confused that morning, and she had documented in Mr. Nash’s medical chart
that he was “agitated and confused” that morning. She further stated that she wrote in the
medical chart that Nash was “[t]rying to climb out of bed; patient is hallucinating and states,
‘I can see chickens.’” Gaunt stated that her notes in Mr. Nash’s medical records indicated that
Mr. Nash was subsequently given the drug Haldol at approximately 10:20 a.m., per
Dr. Williams’s order, which further instructed that the medicine could be given every six
hours as needed. Gaunt testified that she assisted Dr. Williams during his placement of the
NG tube that afternoon and that she did not recall there being any suggestion that the
placement was due to any type of emergency situation. Gaunt further testified that she did not
recall any discussion between Dr. Williams and Mr. Nash concerning the risks or benefits of
placing the NG tube, and that even if there had been such a discussion, she did not believe
that Mr. Nash would have understood it because of his confused mental state. According to
Gaunt, while Dr. Williams was trying to place the NG tube, Mr. Nash was trying to fight it
off, and that she and the doctor’s assistant each had to hold Mr. Nash’s hands down because
he was resisting. She also stated that Dr. Williams appeared to have a hard time getting the
tube inserted. According to Gaunt, Mr. Nash’s medical records stated that he was given a
second dose of Haldol at 1:30 p.m., which was the time that Dr. Williams was placing the
NG tube. Gaunt also recalled that after Dr. Williams placed the tube he did not perform the
routine check to ensure that it was placed correctly. Gaunt also stated that shortly after
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Dr. Williams left the room, Mr. Nash started gasping for air, was having difficulty breathing,
and his blood pressure dropped.
On cross-examination, Gaunt stated that it took Dr. Williams several tries to place the
NG tube but once he placed it, Mr. Nash quit fighting. She also confirmed that she made
two nursing notes at 1:30 p.m. and that while there was no mention in the first note, she
stated in the second note that “Patient vomited minimal amount.” But, Gaunt could not
specifically recall Mr. Nash vomiting and whether it would have occurred before, during, or
after the placement of the tube. She also stated that she would not have assisted with the
placement of the NG tube if she had heard Mr. Nash state that he did not want the tube.
Kristi Brockette, who at the time of this incident was the charge nurse, testified that
Gaunt approached her on the morning of November 6 and told her that she had an order to
place an NG tube but that Mr. Nash was refusing it. Gaunt also told her that Mr. Nash
appeared agitated and confused. Brockette stated that she went with Gaunt to talk to
Mr. Nash to explain the procedure for placing an NG tube and that Mr. Nash was adamant
that he did not want it because his brother had died from the placement of an NG tube. She
also confirmed Gaunt’s recollection that Mr. Nash was having periods of confusion that
morning. Brockette instructed Gaunt to notify Dr. Williams that Mr. Nash had refused the
NG tube. Brockette also stated that she did not observe any emergency situation that
necessitated the placement of the NG tube.
Dr. Stephen Cohen, a colorectal surgeon, testified as an expert witness for Millsap.
Dr. Cohen stated that he reviewed Baptist Health’s policies regarding consent, as well as the
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applicable Arkansas statutes, and interpreted them to require a doctor to seek consent before
performing a procedure in the absence of an emergency situation. Dr. Cohen opined that
after performing surgery on Mr. Nash, Dr. Williams deviated from the standard of care when
he improperly positioned an NG tube “that probably wasn’t needed.” He also stated that the
standard of care is to have someone else in a patient’s room to verify that the patient wants
the tube or to have the next of kin or power of attorney grant consent but that verbal consent
would be sufficient. Dr. Cohen stated that, based on his review of the medical records and
other evidence, Mr. Nash was not capable of granting consent for placement of the NG tube,
and he specifically pointed to the evidence of Mr. Nash’s hallucinations and the fact that
Mr. Nash received two doses of Haldol in a short period of time as the basis for his
conclusion. Dr. Cohen also took issue with the fact that Mr. Nash’s death certificate listed
the cause of death as colon cancer. He admitted that he never treated Mr. Nash but opined,
based on his review of the medical records, that Nash died as a result of “multisystem organ
failure.” He further opined that the effects caused by the incorrect placement of the NG tube
undoubtedly were the primary cause of his death.
On cross-examination, Dr. Cohen admitted that he had no idea what conversation
may have occurred between Dr. Williams and Mr. Nash regarding the placement of the NG
tube, and he also admitted that sometimes a patient may refuse to allow a nurse to perform
a procedure but will subsequently allow a doctor to do it.
Nancy Millsap, Ms. Nash’s daughter, testified that she went to her father’s pre-
operative appointment with Dr. Williams. She stated that her father expressed concern about
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needing a colostomy bag and specifically stated that he did not want an NG tube. Millsap
explained that her father was fearful of an NG tube because his brother had died with an NG
tube in place and that she and her father explained this to Dr. Williams and his nurse. Millsap
stated that Dr. Williams told them there were other things that could be done and “that
probably he wouldn’t need one.” Millsap further stated that her father was so fearful of an
NG tube that he would not have had the surgery if he had to have a tube, and that he
reiterated this to Dr. Williams at the hospital. Millsap stated that she was with her father on
the morning of November 6, and that he was hallucinating and thought there were chickens
in the hospital room. She also stated that there had been several attempts during the evening
of November 5 and the morning of November 6 to place an NG tube, and that each time her
father refused it. Millsap stated that when Dr. Williams came in after lunch she told him that
the nurses had upset her father with their attempts to place an NG tube. Dr. Williams asked
Millsap and the other family members to step out of the room so that he could check Mr.
Nash’s incision. She stated that at the time she left the room she had no idea Dr. Williams
was going to place an NG tube. According to Millsap, when Dr. Williams came out of the
room, he said the incision looked good and told the family to wait before going back in
because the nurses were changing Mr. Nash’s gown. She stated that there was no
conversation about Dr. Williams just having placed an NG tube, and that when she finally was
allowed back into the hospital room, her father was “gray” and she thought he was dead and
screamed for help. She then noticed her father was “tied to the bed, and he had a tube in his
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nose.” Millsap explained that her father was quickly transferred to a critical care unit, and
when she was finally allowed to see him, he had been intubated and was on a ventilator.
Jill Massiet, Vice President for Patient Care at Baptist Health Medical Center of Little
Rock and Baptist Health Rehabilitation Institute, testified regarding a “Consent for
Treatment” policy contained in the medical center’s administrative patient care manual. She
explained that the policy applies to all patients who receive care at Baptist Health and applies
to all caregivers for any patient. She stated that this policy, which governed patient consent,
tracked Arkansas statutory law with respect to patient consent. On cross-examination, Massiet
stated that there was no policy requiring written consent for placement of an NG tube. She
also stated that when a patient signs into the hospital for treatment, he or she signs a general
consent form, giving the hospital general consent to do necessary procedures, but that specific
invasive procedures would have to be discussed with the patient.
At the close of Millsap’s case, Dr. Williams moved for a directed verdict “on all issues
of negligence, proximate causation, and damages.” The circuit court denied the motion, and
Dr. Williams then testified on his own behalf. Dr. Williams stated that during his presurgical
visit with Mr. Nash he discussed with him possible complications associated with the surgery.
Dr. Williams did not recall any discussion with Mr. Nash or his daughter about an NG tube
and testified that if there had been such a discussion he would have included it in his physician
notes. Dr. Williams stated that he first ordered the NG tube on November 4, after receiving
a call concerning Mr. Nash and some hiccups and abdominal distention. Then, on November
6, Dr. Williams stated that he examined Mr. Nash and noticed that his abdomen was very
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distended and that he was uncomfortable and restless. According to Dr. Williams, he told
Mr. Nash that he thought he needed to place an NG tube and gave him the reasons for
placing it. Dr. Williams stated that Mr. Nash was able to understand him and to
communicate with him and that Mr. Nash agreed to the placement of the tube. Dr. Williams
did not recall Mr. Nash using his hands to try to push the tube away. He also stated that he
did not discuss the placement with the family because Mr. Nash consented to it, and
Dr. Williams believed there was some urgency to place the tube. Dr. Williams stated that he
subsequently ordered Mr. Nash be moved to the intensive care unit so he could be more
closely monitored.
On cross-examination, Dr. Williams stated that he explained the benefits and risks of
placing the NG tube and that Mr. Nash did not appear to be confused and appeared capable
to give consent. He admitted, however, that he was not aware of Mr. Nash’s earlier
hallucinations at the time he spoke with him about placing the NG tube. He again stated that
Mr. Nash did not resist placement of the tube, and that while his nurse may have held
Mr. Nash’s hand, no one used force to restrain him during the placement. Dr. Williams
admitted that he knew that Mr. Nash had been refusing placement of the NG tube since he
ordered it on November 4. He also stated that in response to a previous request for admission
proffered by Millsap that he admitted he or his nurse restrained Mr. Nash in order to place
the NG tube. When asked if Mr. Nash’s condition presented an emergency situation
requiring immediate placement of the NG tube, Dr. Williams stated that he believed “it
should have been done right then.” Dr. Williams stated that he did not note in Mr. Nash’s
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chart that the patient had given consent for placement of the NG tube but that it is not always
necessary to document verbal consent. But, when presented with the rules and regulations
applicable to medical staff, Dr. Williams admitted that Baptist Health has a policy that a doctor
who explains a procedure to a patient must provide documentation of having done so.
Dr. Williams also admitted that Baptist has a policy that requires all patients undergoing
medical treatments to give consent except in emergency situations. He further admitted that
the applicable hospital policy allows for emergency/implied consent only when there is no
one immediately available who is authorized to give consent for the patient. Thereafter, Dr.
Williams admitted that he could have talked to Millsap before placing the tube but did not
do so.
Dr. Roderick Boyd, a general surgeon, testified as an expert witness on behalf of Dr.
Williams. Dr. Boyd testified that he believed Dr. Williams complied with the standard of care
in treating Mr. Nash and that nothing he did caused him injury or resulted in Mr. Nash’s
death. He also opined that, for purposes of consent, it was sufficient for Dr. Williams to
explain the tube placement to Mr. Nash and for Mr. Nash to nod in agreement. Dr. Boyd
further opined that the tube needed to be placed “sooner than later.” On cross-examination,
Dr. Boyd admitted that during a prior deposition he stated that Mr. Nash was not of sound
mind at the time Dr. Williams placed the NG tube, but at trial he deferred to Dr. Williams’s
judgment.
Following this testimony, the defense rested, and Dr. Williams renewed his previous
motion for directed verdict and further argued that, based on the testimony of Dr. Williams,
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Mr. Nash consented to the NG tube, and without any evidence to the contrary, there was no
issue to submit to the jury. The circuit court denied the motion, and the parties began
discussing the issue of jury instructions.
In the course of considering jury instructions, Millsap objected to the circuit court
giving AMI Civ. 1508, on the basis that the case to be submitted the jury was not an
informed-consent case, and that instruction was designed for informed consent and
incorporated Arkansas statutes on informed consent. Millsap stated that she had no claim
based on “adequacy of information to Mr. Nash.” According to Millsap, her case was based
on a claim that Mr. Nash refused consent and what information he was or was not supplied
with was immaterial. Millsap then proffered a modified version of AMI Civ. 1508, which
incorporated parts of Arkansas statutes regarding consent to treatment. Dr. Williams argued
that the model instruction was appropriate if the court was going to submit the case to the
jury on the allegation of lack of consent, because it was his position that Mr. Nash gave
consent and the model instruction was therefore applicable, and that modified instructions
should be avoided where there is a model instruction that applies. Millsap next objected to
the giving of AMI Civ. 1509 for the same reasons—it was an informed-consent instruction
and not applicable, as there was no proof of any lack of informed consent. Dr. Williams
argued that the instruction was appropriate because the note on use said it should be given
where there is an issue of granting or withholding consent. Thereafter, the court rejected
Millsap’s proffered instruction that was a modified version of AMI Civ. 1508, and gave both
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AMI Civ. 1508 and 1509. The jury returned a verdict in favor of Dr. Williams, and this
appeal followed.
Millsap argues as her first point on appeal that the circuit court abused its discretion in
giving the jury erroneous and misleading instructions in a case premised on lack of consent.
According to Millsap, the circuit court abused its discretion when it instructed the jury on the
issue of informed consent, as such instructions were misleading because the issue of informed
consent was irrelevant to her cause of action based on a lack of actual consent. Further,
Millsap argues that the circuit court abused its discretion by not properly instructing the jury
with respect to the issue of consent where there was a basis in the evidence for such
instruction.
Dr. Williams counters that the circuit court did not abuse its discretion in instructing
the jury as the instructions given conformed to the facts and law and were not misleading.
In support, Dr. Williams contends that the issue presented to the jury was not whether
Mr. Nash had withheld consent in the past but, rather, the issue was whether, due to a serious
change of circumstances, Dr. Williams informed the patient of his change in condition such
that the patient trusted his doctor and consented to the insertion of the NG tube.
Dr. Williams further argues that “informed consent” was most certainly an issue at trial as
indicated by Dr. Williams’s uncontradicted testimony that Mr. Nash gave consent and that
such consent was naturally informed consent.
It is well settled that a party is entitled to a jury instruction when it is a correct
statement of the law and when there is some basis in the evidence to support giving the
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instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). When instructions are
requested that do not conform to the Arkansas Model Jury Instructions (AMI), they should
be given only when the circuit court finds that the AMI instructions do not contain an
essential instruction or do not accurately state the law applicable to the case. Id. This court
will not reverse a circuit court’s refusal to give a proffered instruction unless there was an
abuse of discretion. Id.
Here, the disputed jury-instruction issue centers on the giving of model instructions
on a theory of informed consent and the rejection of a proffered instruction based on Arkansas
statutes governing consent to treatment. On the one hand, the circuit court approved
Millsap’s modified version of AMI Civ. 1507 and instructed the jury as follows:
Nancy Millsap, as Special Administratrix of the Estate of Robert Nash, asserts
two separate grounds for recovery: First, that there was negligence on the part of
Victor Williams, M.D.; and, second, that Victor Williams, M.D. failed to obtain
proper consent before he placed a nasogastric tube.
With respect to the claim of negligence, Nancy Millsap, as Special
Administratrix of the Estate of Robert Nash, has the burden of proving each of three
essential propositions: First, that the Plaintiff has sustained damages; second, Victor
Williams, M.D. was negligent; and, third, that such negligence was a proximate cause
of damages to the Plaintiff.
With respect to the failure to obtain consent, Nancy Millsap, as Special
Administratrix of the Estate of Robert Nash, has the burden of proving each of three
essential propositions: First, that the Plaintiff sustained damages; second, that the
nasogastric tube was placed without consent; third, that such failure was a proximate
cause of damages to the Plaintiff.
It will be necessary for you to consider separately each asserted ground for
recovery. If you find from the evidence that every essential proposition with respect
to any one ground for recovery has been proved, then your verdict should be for the
Plaintiff and against the party or parties against whom that ground for recovery is
asserted; but if you find from the evidence that any essential proposition with respect
to any one ground for recovery has not been proved, then your verdict with respect
to that ground for recovery should be for the Defendant.
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But, then the circuit court refused Millsap’s other proffered instruction, based on
statutory language found in Arkansas Code Annotated sections 20-9-601 to -603 (Repl.
2014). The proffered instruction stated as follows:
Arkansas law provides a doctor is required to obtain consent before treating or
performing medical procedures on a patient. Consent may be written or oral and any
adult may consent for himself or herself. If an adult is of unsound mind, then any adult
child of the patient may provide consent.
“Unsound mind” means the inability to perceive all relevant facts related to
one’s condition and proposed treatment so as to make an intelligent decision based
thereon, regardless of whether the inability is only temporary, has existed for an
extended period of time, or occurs or has occurred only intermittently. The inability
may be due to natural state, age, shock, or anxiety, illness, injury, drugs or sedation or
other cause of whatever nature. An individual shall not be considered to be of unsound
mind based solely upon his or her refusal of medical care or treatment.
Consent is not required when an emergency exists AND there is no one
immediately available who can provide consent for the patient. An emergency is
defined as a situation in which, in competent medical judgment, the proposed
procedure is immediately or imminently necessary and any delay occasioned by an
attempt to obtain a consent would reasonably be expected to jeopardize the life, health
or safety of the person affected.
Thus, despite the notice to the jury that Millsap was alleging a claim for failure to
obtain consent, there were no further instructions given that explained when a doctor must
obtain consent, how consent may be given, or who may give consent. It is obvious from the
focus of the evidence presented in this trial, as demonstrated by the testimony recited herein,
that Millsap’s claim was that Mr. Nash either did not consent to the placement of the NG
tube or was unable to give consent because of mental impairment. The only testimony at all
about informed consent was the self-serving testimony of Dr. Williams that he explained the
need for the NG tube and that Mr. Nash then consented to its placement. This testimony
was simply presented to refute Millsap’s claim that Mr. Nash never gave consent.
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It is true that nonmodel jury instructions should be given only when the circuit court
finds that the model instructions do not contain an essential instruction or do not accurately
state the law applicable to the case. Nelson v. Stubblefield, 2009 Ark. 256, 308 S.W.3d 586;
Barnes, 351 Ark. 479, 95 S.W.3d 740. But, that was precisely the situation that occurred in
this case. There was no model jury instruction regarding consent to treatment, and the
instructions related to informed consent were not applicable to the case before the jury.
While the model instructions are to be used as a rule, a nonmodel instruction may be used
when an AMI instruction cannot be modified. Barnes, 351 Ark. 479, 95 S.W.3d 740.
Because there was no applicable model instruction, Millsap proffered an instruction based on
the consent-to-treatment statutes, but the circuit court rejected it. This court has held that
it is error for the circuit court to fail to instruct the jury on a statute applicable to the case.
Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d 414.
Compounding the circuit court’s refusal to give Millsap’s proffered instruction was its
giving of AMI Civ. 1508, which explained the duty of a surgeon to supply adequate
information so that a patient can make a reasoned decision to give or withhold consent, and
AMI Civ. 1509, which instructed the jury on the elements that it could consider in
determining “whether the failure to obtain an informed consent was a proximate cause of any
damages sustained.” These two instructions regarding informed consent had absolutely
nothing to do with the allegation that Dr. Williams placed the NG tube without any consent
by Mr. Nash. Informed consent presupposes that a patient consented to the procedure but
may have done so without all information necessary to make a reasoned decision.
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It is axiomatic that when a jury instruction is erroneous or misleading, it is prejudicial
and should not be given to the jury. See Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493;
Allstate, 2011 Ark. 19, 376 S.W.3d 414. Although the circuit court presented the jury with
a modified version of AMI Civ. 1507, its subsequent giving of AMI Civ. 1508 and 1509 only
served to confuse the jury as to what Millsap’s cause of action was and what she was required
to present to prove her case. It must be remembered that the purpose of jury instructions is
to inform the jury of the legal principles applicable to the facts presented, and to furnish a
guide to assist jurors in reaching a verdict. Hearn v. E. Tex. Motor Freight Lines, 219 Ark. 297,
241 S.W.2d 259 (1951). In sum, the circuit court’s failure to properly instruct the jury in this
case calls into question the validity of the jury’s verdict, as it was based on incomplete and
confusing instructions. This clearly constituted an abuse of discretion, and we therefore must
reverse and remand. Finally, because we are reversing and remanding for a new trial, it is not
necessary to address Millsap’s second point on appeal regarding the sufficiency of the evidence.
Reversed and remanded.
BAKER, GOODSON, and HOOFMAN, JJ., dissent.
CLIFF HOOFMAN, Justice, dissenting. Because I believe that the majority errs in
reversing and remanding this case and overlooks this court’s prior case law, I respectfully
dissent. While the majority opinion states that it is unnecessary to address appellant’s second
point on appeal, the two points are so interrelated that I think they must be addressed
together, and I do so in this dissent. Appellant first contends that the trial court abused its
discretion by providing erroneous and misleading instructions to the jury concerning
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“informed consent” rather than her proffered instruction. Specifically, she argues that the trial
court provided the jury with AMI Civ. 1508 (2013) and AMI Civ. 1509 (2013) over her
objection, which concern whether a patient has been provided with sufficient information in
order to provide consent. She alleges that these instructions were misleading because she
argues that her case did not involve whether Dr. Williams provided adequate information but
whether Dr. Williams received actual consent. In support, she cites to Arkansas Code
Annotated §§ 20-9-601 to -603 for a recitation of Arkansas’s law regarding consent in general
and alleges that “consent” and “informed consent” are two entirely separate issues.
Additionally, she explains that the trial court’s instructions did not provide the jury
with guidance as to the important elements that are required for consent, “including whether
Mr. Nash was even capable of providing consent, and if he was in fact ‘of unsound mind[,]’
whether there was implied consent requiring both the existence of an emergency AND
evidence that no other authorized person was ‘immediately available’ who could provide
consent.” Finally, appellant contends, in what she identifies as her second point on appeal,
that “The Evidence Was Sufficient For A Jury To Find That Robert Nash Suffered Injury As
A Result Of Undergoing A Nasogastric Procedure Performed Without Proper Consent.”
Specifically, she outlines the evidence presented at trial that could have formed a basis in the
evidence for the trial court to use in giving her proffered instruction, had the court not refused
to do so. Appellee disagrees and contends that the trial court did not abuse its discretion. I
would affirm.
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A party is entitled to a jury instruction when it is a correct statement of the law and
there is some basis in the evidence to support giving the instruction. Boellner v. Clinical Study
Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745. However, this court will not reverse a trial
court’s refusal to give a proffered instruction unless there was an abuse of discretion. Edwards
v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). Furthermore, it is not error for the trial court
to refuse a proffered jury instruction when the stated matter is correctly covered by other
instructions. Id. When instructions are requested that do not conform to the Arkansas Model
Jury Instructions (“AMI”), they should be given only when the trial court finds that the AMI
instructions do not contain an essential instruction or do not accurately state the law applicable
to the case, due to our longstanding preference in favor of AMI instructions over non-AMI
instructions. Nelson v. Stubblefield, 2009 Ark. 256, 308 S.W.3d 586; Boellner, supra.
Additionally this court has said that AMI instructions are to be used as a rule, and non-
AMI instructions should be used only when an AMI instruction does not exist or cannot be
modified. Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d 414. It is error for the trial
court to fail to instruct the jury on a statute applicable to the case; however, it is also error for
the trial court to instruct the jury on an inapplicable statute. Id. Portions of a statute not
applicable to the facts of the case must be deleted. Id.
Specific objections to instructions are necessary to preserve an issue for appeal. Ark.
R. Civ. P. 51. Specifically, Arkansas Rule of Civil Procedure Rule 51 states,
At the close of the evidence or at such earlier time as the court may reasonably
direct, any party may submit requested jury instructions to the court. The court shall
inform counsel of its proposed action upon the requested instructions and also inform
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counsel of all other instructions it proposes to submit to the jury. The court shall
instruct the jury prior to the arguments of counsel. No party may assign as error the giving
or the failure to give an instruction unless he objects thereto before or at the time the instruction
is given, stating distinctly the matter to which he objects and the grounds of his objection, and no
party may assign as error the failure to instruct on any issue unless such party has
submitted a proposed instruction on that issue. Opportunity shall be given to make
objections to instructions out of the hearing of the jury.
A mere general objection shall not be sufficient to obtain appellate review of
the court’s action relating to instructions to the jury except as to an instruction
directing a verdict or the court’s action in declining to do so.
(Emphasis added.) Therefore, this court has interpreted this rule to require specific objections
in order to alert the trial court as to why the instruction is wrong. Allstate Ins. Co., supra.
Additionally, this court has held that a general objection to a jury instruction is permissible
only if the instruction is inherently erroneous, meaning the instruction could not be correct
under any circumstance, and is binding in nature. Id.
At trial, appellant offered the following objections to two of the jury instructions at
issue in this appeal and proffered a modified jury instruction.
Your Honor, the Plaintiff objects to the giving of AMI 1508. The position of the
Plaintiff is this is not an informed consent case. 1508 is an instruction designed for
informed consent cases and incorporates the Arkansas statutes on informed consent.
We’re not claiming in this case adequacy of information to Mr. Nash. We’re claiming
that he refused -- that that was immaterial as to what information he was or was not
supplied with, and we’re not going to claim that any information was or was not
adequate. I don’t even know that. So we would object to the giving of AMI 1508.
....
And I have a -- In regard to that your Honor, I would proffer the Plaintiff’s version
of AMI 1508, which is modified to incorporate parts of Arkansas Code Ann. 20-9-601
and the following.
....
The Plaintiffs next object to AMI 1509. It’s -- for the same reasons. This is an
informed consent instruction. And, honestly, there’s no proof of lack of any informed
consent and we’re not claiming that. And this is part of the informed consent statute
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which, in the Plaintiff’s belief, is inapplicable, and that there are no AMI instructions
that particularly apply to consent. And that’s why we have relied on the statute in
drafting instructions that are substantially modified.
(Emphasis added.)
In pertinent part, the trial court read the following jury instructions to the jury,
encompassing AMI Civ. 1501, 1508, and 1509 (2013):
[AMI 1501 as modified 1]
In treating and/or obtaining the consent of a patient, a physician must possess
and apply with reasonable care the degree of skill and learning ordinarily possessed and
used by members of his profession in good standing, engaged in the same type of
practice in the locality in which he practices, or in a similar locality. A failure to meet
this standard is negligence.
In determining the degree of skill and learning the law required of Victor
Williams, M.D., and in deciding whether he used the degree of skill and learning
which the law required, you may consider only the expert testimony of the physicians.
In deciding whether any negligence of Victor Williams, M.D. was a proximate
cause of injuries and/or death of Robert Nash, that otherwise would not have
occurred, you may consider only the expert testimony of the physicians.
In considering the evidence on any other issue in this case, you are not required
to set aside your common knowledge, but you have a right to consider all the evidence
in light of your own observations and experiences in the affairs of life.
The fact that a death occurred is not, of itself, evidence of negligence on the
part of anyone.
[AMI 1507 as modified 2]
Nancy Millsap, as Special Administratrix of the Estate of Robert Nash, asserts
two separate grounds for recovery: First, that there was negligence on the part of
Victor Williams, M.D.; and, second, that Victor Williams, M.D. failed to obtain
proper consent before he placed a nasogastric tube.
1
The court accepted appellant’s modified version of AMI 1501 over appellee’s
objection, striking the word “informed” before “consent.”
2
The court accepted appellant’s modified version of AMI 1507 over appellee’s
objection, striking the word “informed” before “consent.”
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With respect to the claim of negligence, Nancy Millsap, as Special
Administratrix of the Estate of Robert Nash, has the burden of proving each of three
essential propositions: First, that the Plaintiff has sustained damages; second, Victor
Williams, M.D. was negligent; and, third, that such negligence was a proximate cause
of damages to the Plaintiff.
With respect to the failure to obtain consent, Nancy Millsap, as Special
Administratrix of the Estate of Robert Nash, has the burden of proving each of three
essential propositions: First, that the Plaintiff sustained damages; second, that the
nasogastric tube was placed without consent; third, that such failure was a proximate
cause of damages to the Plaintiff.
It will be necessary for you to consider separately each asserted ground for
recovery. If you find from the evidence that every essential proposition with respect
to any one ground for recovery has been proved, then your verdict should be for the
Plaintiff and against the party or parties against whom that ground for recovery is
asserted; but if you find from the evidence that any essential proposition with respect
to any one ground for recovery has not been proved, then your verdict with respect
to that ground for recovery should be for the Defendant.
[AMI 1508]
In obtaining consent to perform a procedure, a surgeon is under a duty to
supply adequate information to enable the patient to make a reasoned and intelligent
decision to give or withhold consent.
Other than in an emergency situation, the information required is that type as
would customarily have been given at the time of treatment to a patient in a similar
situation by other surgeons with similar training and experience practicing in the
locality in which he practices or in a similar locality.
[AMI 1509]
In determining whether the failure to obtained an informed consent was a
proximate cause of any damages sustained by Nancy Millsap, as Special Administratrix
of the Estate of Robert Nash, you may consider the following factors: (a) Whether
Robert Nash knew, or whether a person of ordinary intelligence and of awareness in
a position similar to that of Robert Nash could reasonably be expected to know, of the
risks or hazards inherent in such a procedure; (b)Whether Robert Nash would have
undergone the procedure, regardless of the risks involved, or whether he did not wish
to be informed thereof; (c) Whether it was reasonable for Doctor Williams to limit
disclosure of information because that disclosure could be expected to adversely and
substantially affect Robert Nash’s condition.
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In place of the trial court reading AMI Civ. 1508, appellant proffered the following
modified jury instruction that she alleges incorporates Arkansas Code Annotated §§ 20-9-601
to -603:
Arkansas law provides a doctor is required to obtain consent before treating or
performing medical procedures on a patient. Consent may be written or oral and any
adult may consent for himself or herself. If an adult is of unsound mind, then any adult
child of the patient may provide consent.
“Unsound mind” means the inability to perceive all relevant facts related to
one’s condition and proposed treatment so as to make an intelligent decision based
thereon, regardless of whether the inability is only temporary, has existed for an
extended period of time, or occurs or has occurred only intermittently. The inability
may be due to natural state, age, shock or anxiety, illness, injury, drugs or sedation or
other cause of whatever nature. An individual shall not be considered to be of unsound
mind based solely upon his or her refusal of medical care or treatment.
Consent is not required when an emergency exists AND there is no one
immediately available who can provide consent for the patient. An emergency is
defined as a situation in which, in competent medical judgment, the proposed
procedure is immediately or imminently necessary and any delay occasioned by an
attempt to obtain a consent would reasonably be expected to jeopardize the life, health
or safety of the person affected.
At trial, appellant objected to the inclusion of AMI Civ. 1508 and 1509 instead of her
proffered jury instruction, explaining that she was not arguing whether the information
supplied was adequate but that “[Nash] refused.” The jury had already been instructed that
the failure to obtain proper consent was a ground for recovery in the modified AMI Civ.
1507 jury instruction proposed by appellant. Therefore, it was not error for the trial court to
refuse the proffered jury instruction when the jury had been instructed in other instructions
that the failure to obtain consent was a ground for recovery. See Edwards v. Stills, 335 Ark.
470, 984 S.W.2d 366 (1998).
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Additionally, the trial court did not abuse its discretion, as the majority opines, for
including AMI Civ. 1508 and 1509 in its instructions. The first paragraph in the notes on use
of AMI Civ. 1508 provides that “[t]his instruction should be given when a question is
submitted as to whether adequate information was supplied by the medical care provider in
connection with the granting or withholding of consent to treatment.” (Emphasis added.) Similarly,
the first sentence in the notes on use of AMI Civ. 1509 provides that “[t]his instruction should
be given in addition to AMI 1501 when a question is submitted as to whether adequate
information was supplied by the medical care provider in connection with the granting or
withholding of consent to treatment.” (Emphasis added.) AMI Civ. 1508 explained to the jury
that not only was Dr. Williams required to obtain consent but also that he was obligated to
supply adequate information for Nash to decide whether to give or withhold consent.
Furthermore, the evidence presented in Dr. Williams’s testimony supported such an
instruction when Dr. Williams testified that he met with Nash and explained the reasons why
he thought that he needed an NG tube. At trial, Dr. Williams testified that on November 6,
2009, he placed an NG tube after Nash consented to the procedure by “nodding his head”
after he explained why he thought the procedure was necessary. He explained that Nash was
cooperative during the NG placement, that Nash appeared to be of sound mind, and that he
did not speak with any family members because Nash had consented to the procedure.
Therefore, there was some basis in the evidence to support giving the instruction. See
Boellner, supra. While the majority states that this testimony was “self-serving,” this court has
repeatedly held that a party is entitled to a jury instruction when it is a correct statement of
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the law and there is some basis in the evidence to support giving the instruction. Id. The fact
that the evidence was presented through the testimony of Dr. Williams is immaterial. Thus,
the inclusion of this instruction and the additional instruction of AMI Civ. 1509 was not
misleading but instead may have been beneficial to appellant, and I find that appellant failed
to demonstrate that she was prejudiced or that the trial court abused its discretion in giving
the two jury instructions. See generally Edwards, supra.
Appellant also argues on appeal that her proffered jury instruction was necessary to
provide the jury with guidance on the important elements that are required for consent,
“including whether Mr. Nash was even capable of providing consent, and if he was in fact ‘of
unsound mind[,]’ whether there was implied consent requiring both the existence of an
emergency AND evidence that no other authorized person was ‘immediately available’ who
could provide consent.” She further identified on appeal testimonial evidence that supported
the inclusion of her proffered instruction. However, contrary to the majority opinion,
appellee correctly contends that appellant failed to state this particular argument as a basis for
her objection at trial.
At trial, appellant specifically stated the following when objecting to AMI Civ. 1508
and offering the proffered instruction:
“We’re claiming that he refused -- that that was immaterial as to what information he was
or was not supplied with, and we’re not going to claim that any information was or
was not adequate. I don’t even know that. So we would object to the giving of AMI
1508.
....
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And I have a -- In regard to that your Honor, I would proffer the Plaintiff’s version
of AMI 1508, which is modified to incorporate parts of Arkansas Code Ann. 20-9-601
and the following.
(Emphasis added.) While the majority holds that “it is obvious from the focus of the evidence
presented in this trial . . . that Millsap’s claim was that Mr. Nash either did not consent to the
placement of the NG tube or was unable to give consent because of mental impairment,” the
appellant cannot change the specific arguments made before the trial court now on appeal,
even if the new argument may be meritorious. In fact, it is well settled that this court will not
consider arguments raised for the first time on appeal. Brown v. Lee, 2012 Ark. 417, 424
S.W.3d 817. Moreover, a party cannot change the grounds for an objection or motion on
appeal but is bound by the scope and nature of the arguments made at trial. Id. Appellant
was required to make a specific objection to alert the trial court as to why she thought the
instruction was wrong and was required to be equally specific as to why her proffered
modified, instruction should have been given. She may not on appeal change the scope of
this argument. Allstate Ins. Co., supra; Bell v. Misenheimer, 2009 Ark. 222, 308 S.W.3d 120.
Accordingly, I think we are precluded from addressing the merits of this new argument on
appeal, and I would affirm the trial court.
BAKER and GOODSON, JJ., join.
Brad Hendricks Law Firm, by: Lamar Porter and Todd Jones, for appellant.
Womack, Phelps & McNeill, by: Paul McNeill and Chuck Gschwend, for appellee.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for amicus curiae Arkansas
Trial Lawyers Association.
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