May 22, 2019

Colorado Court of Appeals: Lack of Written Informed Consent for Surgery, “Habit Testimony Instruction,” and Excluded Testimony Not Sufficient for Reversal

The Colorado Court of Appeals issued its opinion in Holley v. Huang on May 12, 2011.

Informed Consent for Surgery—New Trial—Expert Opinion—Exclusion of Testimony—Habit Instruction.

Plaintiff Joan Holley appealed from the trial court’s judgment in favor of defendant Dr. Linda Huang. The judgment was affirmed.

Dr. Huang performed breast augmentation surgery on Holley. Holley later sued for damages—not for poor performance of the surgery, but for failure to obtain an informed consent for the procedure used on her right breast (a circumareolar mastopexy). To prevail, Holley was required to prove that: (1) Huang negligently failed to obtain Holley’s informed consent before making an incision around the areola to place an implant and to lift her right breast; (2) a reasonable person in the same or similar circumstances as Holley would not have consented to the procedure if given the necessary information; and (3) Huang’s negligent failure caused Holley’s injuries or damages.

A jury found in Dr. Huang’s favor, concluding that she obtained Holley’s informed consent before performing the surgery. On appeal, Holley requested a new trial based on more than forty arguments. The Court of Appeals addressed three in detail, disposed of several others summarily, and disregarded the rest.

Holley proffered expert opinion to prove Dr. Huang was negligent in failing to document the informed consent. The Court held that the trial court correctly disallowed that testimony. Under Colorado law, although a doctor must obtain a patient’s informed consent before performing any medical procedure, the means of obtaining that consent is not specified. The Court recognized that most informed consent is obtained in writing, for many good reasons; however, documentation is not required. Therefore, expert testimony on this issue was properly disallowed.

Holley wanted to testify that she never would have consented to the procedure had she been properly informed of its risks. The trial court excluded this testimony, finding it was not relevant and its minimal probative value was outweighed by the risk of prejudice to the defense. The Court found the ruling erroneous, but harmless. Holley’s testimony about what she would have done would serve as evidence of what a reasonable person in her position would have done. In addition, the proffered testimony presented no risk of unfair prejudice. The error was harmless, however, because Holley did not establish that excluding this testimony “influenced the outcome of the case or impaired the basic fairness of the trial itself.” The jury found that Holley had been informed of the risks and this testimony would not have altered that finding.

Holley argued that the trial court’s habit testimony instruction constituted reversible error because it required the jury to credit habit testimony over other types of evidence. The Court disapproved of the instruction but declined to reverse. The trial court instruction stated: “In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise.” The Court held that although the instruction is an accurate statement about the relevance of habit testimony, it should not have been given because it was intended to guide judicial review and not jury deliberations. The Court did not reverse because (1) the trial objection did not preserve this argument; and (2) any error or prejudice from the instruction did not warrant reversal given the totality of the instructions and closing arguments.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

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