Delaware Supreme Court declined to find that the informed consent statute disposed of the common law requirement of causation in a negligence action.

The plaintiffs brought this medical negligence action based on a claim of lack of informed consent. After the jury returned a verdict for the defendant due to the plaintiffs' failure to prove causation, the plaintiffs filed an appeal. Under Delaware law, a health care provider has a duty to provide his/her patient with information about the alternatives and risks of a proposed treatment. This duty is breached if the health care provider fails to provide information that would be material to the patient's decision whether or not to undergo the proposed treatment. The Delaware Supreme Court noted that the parties agreed upon three elements that a plaintiff must prove in order to prevail on an informed consent claim, so the sole issue on appeal before the Court concerned the element of causation. Specifically, the Court considered whether a plaintiff must prove that a reasonable person would have declined to undergo the procedure if s/he had been properly informed of the risks and alternatives. The Court addressed the "settled" Delaware law that, as a form of medical malpractice, an informed consent claim is one for negligence. The Court declined to find that the informed consent statute disposed of the common law requirement of causation in a negligence action. In addition to affirming the judgment of the lower court and in anticipation that the relevant pattern jury instruction would be revised after its decision, the Court also noted two additional matters that were not addressed by either party. First, the Court expressed its agreement with the lower court's decision that an objective standard should be utilized in deciding proximate cause, such that the jury should consider what a reasonable person in the plaintiff's circumstances would have done. Lastly, the Court noted that in deciding proximate cause, the jury should be permitted to consider all of the options that a reasonable person would have had when deciding whether to proceed with the treatment.

Case Law Alert - 3rd Qtr 2011