The fact that a patient may be found to have contributed to a lack of informed consent has been long recognized in the case law of New York, but is underappreciated in current practice. For more than 30 years the courts have recognized that the culpable conduct of the patient will reduce the exposure of the medical practitioner for lack of informed consent. Suria v. Shiffman, 107 A.D.2d 309 (1st Dept. 1985); Tenney v. Bedell, 624 F. Supp. 305 (SDNY 1985); Bellier v. Bazan, 124 Misc.2d 1055 (Sup. Ct. N.Y. Co. 1984).

Because the informed consent cause of action is statutory, having been codified in New York Public Health Law §2805-d, it might be expected that the statute would provide guidance to the defenses available to one who is defending such a claim. In general terms the statute provides that the reasonably foreseeable risks of non-emergency invasive treatment be disclosed to the patient prior to the procedure so that when consent is given, it is based upon information which has educated the patient to the point where an informed decision can be made.

Defenses

The defenses that are set forth in §2805-d(4) include circumstances where the risk is too commonly known to require disclosure, the patient assured the practitioner that she would undergo the procedure regardless of the risks or did not want to be advised of the risks, or the patient's consent was not reasonably possible. Although these enumerated defenses are rarely encountered in litigating informed consent cases, the routine response in the answer of the defendant who is facing an informed consent claim is to deny the allegations and to raise the defenses provided by the statute.

Communication

The most important aspect of informed consent in the medical arena is the discussion between medical provider and patient. Effective communication places an obligation on both parties to the discussion. Informed consent is a process which extends far beyond the signature of the patient on the hospital's generic consent form. In most elective procedures, the patient has received information from a variety of sources including the practitioner who is offering to perform the treatment. It is that provider who has the legal obligation to assure that the patient's consent was informed, since the performance of the procedure on the incompletely informed patient is what is legally actionable. Nisenholtz v. Mt. Sinai Hospital, 126 Misc.2d 658, 663 (Sup. Ct. N.Y. Co., 1984). However, the patient may have obtained information from other sources and persons, and at times well before the procedure was performed.

The informed consent provisions of the Public Health Law do not address culpable conduct on the part of the patient as a defense to an informed consent case. However, the terms of Civil Practice Law and Rules §1411 make it clear that in any personal injury or wrongful death case, the culpable conduct of the patient will diminish the damages recoverable from the health care provider for malpractice or lack of informed consent. CPLR §1412 requires that the defendant plead culpable conduct as an affirmative defense and places the burden of proving that defense on the one who asserts it. Given the fact that culpable conduct is far more common in the lack of informed consent situation than the combined defenses set forth in PHL §2805-d(4), the culpable conduct defense needs to be considered from the pleading stage when an informed consent claim is presented.

Stages of Litigation

Today's jurors are quite receptive to the proposition that health care is an area where the patient shares responsibility for the outcome. There is a spectrum of medical malpractice cases in which patients have been assigned the majority of the liability for poor outcome. In Golson v. Addei, 216 A.D.2d 268 (2d Dept. 1995), the appeals court found the patient's negligence to be insufficient to justify the 90% culpable conduct assessed by the jury, and sent the case back for trial before a new jury, which independently found the patient's culpability to be the same 90%. In Flanagan v. Southside Hospital, 251 A.D.2d 447 (2d Dept. 1998), a single telephone conversation between a nurse and a patient resulted in a sustained award with a finding of 85% culpable conduct on the part of the patient.

In the pleadings phase of an informed consent case, little is known except that there has been a procedure, there was an unsatisfactory outcome, and there is an informed consent claim. The patient's culpability may not be immediately apparent at the time when defense counsel has to determine which affirmative defenses to raise. However, if the defense is not raised, it may be difficult to amend the answer at a later point, and the need to do so is easily overlooked. A generally worded culpable conduct defense can be articulated in the answer, which may not solve the entire problem but will extend the time for handling it.

The next obstacle that the defendant will encounter is the burden of proof on the culpable conduct defense, which requires a response when the attorney for the plaintiff demands a bill of particulars of the affirmative defense. Forney v. Huntington Hospital, 134 A.D.2d 405 (2d Dept. 1987) citing CPLR §3018(b). Information regarding the factual basis of the affirmative defense may still be vague, but a response is probably sufficient if it makes clear that the defendant is taking the position that if informed consent was not obtained, the patient bears some of the responsibility for not understanding the information provided but proceeding to consent without revealing the lack of understanding. It is important to amplify the basis of the culpable conduct defense sufficiently to allow sufficient scope to defense counsel in taking the deposition of the plaintiff.

At the deposition of the patient, the scope of questioning will extend to what the patient learned about the colonoscopy, plastic surgery, LASIK procedure or other treatment before he consulted the physician. Prior surgical consent with similar risk or for procedures with identical risk is a potentially valuable area of inquiry. A lack of recollection of the consent given to an unrelated procedure may support the defense that the patient did not act reasonably in dealing with important information and decision-making, or is not credible in recalling what she says she was not told about risk. The patient may also be questioned regarding what research he did on the condition to be addressed and the alternatives to the treatment undertaken, with the attendant risks. There are jurors who would believe that a reasonable patient would at least attempt the research which is available on the devices they routinely use to investigate where he should eat lunch.

Where the patient's complication or unsatisfactory result occurred at the time of the procedure or soon thereafter, it may be possible to identify the literature she was given in advance of the procedure, including instruction sheets, explanatory pamphlets, or even the consent form itself. The medical provider may be able to provide copies of what the patient recalls having received but has not retained. Some of that material is explicit about the reasonably foreseeable risks. Every patient should admit knowing that there is a risk to a surgical procedure done in a sterile operating room with sharp instruments, blood loss, scarring, and the risk of infection. The plaintiff who denies knowing these basic risks, or flatly denies reading or hearing about any risk to the procedure, may impress the jurors as having been culpably complicit in her lack of informed consent.

Although the jury would generally not require expert testimony to evaluate the reasonableness of the patient's participation in the consent process, the burden of proving her culpable conduct remains with the defendant. Based on the particulars of the case, it may be advisable to include mention of the culpable conduct of the patient in the disclosure for the defendant's liability expert, at least to the extent of how the patient's lack of reasonable care contributed to the claimed injuries. Explicit expert responses will spare the attorney who defends the case at trial from dealing with preclusion arguments based upon claims of surprise.

For most procedures performed in current medical practice the consent process is well established and involves multiple occasions for the patient to obtain the information that will lead to an informed decision. The trial defense is usually oriented toward proving that the consent process is immutable but the patient has many incentives not to recall the information imparted. The patient may testify that he or she would never have consented if properly informed, but the overwhelming majority of patients do consent to elective procedures, and it is the jury's function to determine what the reasonable patient would have done if given the requisite information.

Conclusion

Where defending an informed consent claim, the value of the culpable conduct defense is worth exploring and developing for a complete defense.

John L.A. Lyddane is a partner at Dorf & Nelson who has extensive experience in jury trials of technically complicated liability matters, including professional liability cases and construction-related lawsuits.