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Informed consent case founders on speculation

scvseal_feaFamily members’ speculation about a patient’s reluctance to have surgery was not enough to support an informed consent case after the patient died following gallbladder surgery, the Supreme Court of Virginia ruled last month.

The case focused on the admissibility of lay opinion: when a non-expert offers an opinion. While it is one thing to allow someone’s opinion about distance, time, size and even the value of one’s own property, the high court said it may be a stretch to consider opinion about the thought processes of another person.

The case is Martin v. Lahti (VLW 018-6-005).

Informed consent claim

The patient, Margaret Starr, died from complications of surgery to remove her gallbladder. The procedure, performed by surgeon Gary Lahti, began as a laparoscopic procedure but was converted to an open procedure when Lahti nicked a bowel.

Starr’s daughter, Wanda Martin, brought suit against the doctor and his practice. After nonsuiting other claims, the only remaining claim was informed consent. Martin contended Lahti failed to explain that a “conservative non-operative medical course was a reasonable option.” The daughter further alleged that, if the no-surgery option had been offered, her mother would not have undergone the procedure.

The procedure before Danville Circuit Judge James J. Reynolds was unusual. He granted a motion to dismiss, but held an evidentiary hearing after the plaintiff moved to reconsider.

Martin – the patient’s daughter – said her mother did not want more surgeries. “She was tired of being cut up,” Martin testified. A sister also said she believed Starr would not have agreed to the surgery if she had known about alternatives to the procedure.

Reynolds dismissed the informed consent case, saying the family members’ proffered evidence was hearsay and speculative.

‘Nothing but speculation’

The Supreme Court said it would review the decision on lay opinion testimony for abuse of discretion. It found none.

In an opinion written by Justice Stephen R. McCullough, the court noted that lay opinions have been allowed based on a witness’s personal experience or observations about matters such as erratic behavior and incoherent statements.

“Lay opinions about a condition like sanity or mental capacity are one thing; an opinion from a witness concerning whether another person would or would not have made a specific decision is a different matter altogether,” McCullough wrote for the court.

He noted neither Martin nor the sister was present when Lahti consulted with Starr and neither knew what he may or may not have told her about the risks of, and alternatives to, the surgery.

The family members “seek to extrapolate a decision their mother and sister would have made, despite the complete absence of evidence from Starr and from the doctor about the discussion that actually transpired between them and, specifically, whether surgical alternatives were or were not mentioned,” McCullough wrote.

The testimony, the justices said, was “nothing but speculation about what Starr’s thought process might have been.”

The high court declined to consider whether a statement by Starr after her surgery – “I thought that this would be an easy operation” – was properly excluded. Reynolds had sustained an objection based on relevance.

The justices said the issue was precluded on review because the assignment of error spoke of hearsay and speculation, not relevance. “Failure to assign error to the trial court’s ruling means that the issue is waived,” the court said.

Martin was represented by Robert W. Mann of Martinsville. Mann said he respected the court’s decision, but was considering asking for reconsideration. He said the court added a condition to the rule on lay opinion that was never articulated before.

Lahti was represented on appeal by Frank K. Friedman of Roanoke. He did not respond to a request for comment as of press time.

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