PERSONAL INJURY CORNER
Medical Consent Immunity
TED BABBITT
Florida ' s legislature adopted Florida ' s Medical Consent Law in 2014 , designed to give immunity to physicians with regard to a suit based on lack of informed consent under certain circumstances when the physician imparts sufficient information so that the patient has a general understanding of the procedure , the medically accepted alternative procedures or treatment , and the substantial risks and hazards inherent in the proposed treatment or procedures , which are recognized among other physicians .
In Yentes v . Papadopoulos , 2D 21-3277 , Fla . 2d DCA Dec . 2 , 2022 , a patient sued a doctor who had performed a robotic prostatectomy which resulted in complications , and the physician did not inform the patient that he had never performed this procedure before and that a proctor would be attending the surgery as well . The Plaintiffs attached to the complaint an affidavit from a boardcertified urologic surgeon who opined that the prevailing standard of care would have required the Defendant to inform the Plaintiff that he had never performed this type of operation before or had performed it on a limited basis and that a proctor would be attending the surgery as well . The affidavit also stated that to a reasonable degree of medical certainty , the Plaintiff would not have chosen to undergo this type of surgery had he been given appropriate information .
The trial court granted a judgment on the pleadings for the Defendant , holding that there was no explicit duty for a physician to disclose prior experience with a specific procedure under Florida ' s Informed Consent Law and that , therefore , an order granting a motion for judgment on the pleadings was appropriate .
The Second District reversed , holding first that it is well-settled that a Defendant ' s motion for judgment on the pleading requires the Court to assume all allegations in the complaint to be true and all allegations in the answer to be false and that the motion must be decided solely on the pleadings and without regard to any other matter outside the pleadings , including any discovery that had taken place . The appellate court further held that a trial court cannot grant a motion for judgment on the pleadings where any factual questions remain unresolved . Here , the affidavit of a wellqualified expert raised clear questions of fact , both with respect to whether the standard of care required the disclosure of the Defendant ' s lack of experience as well as an issue of fact as to whether the Plaintiff would have undergone the procedure had he been informed of that lack of experience .
The appellate court found that on the issue of informed consent , the information that is required varies from case to case , and thus the duty of the physician to inform a patient depends on the circumstances of that particular case . The reference in the statute to the information that must be provided is not intended to be an exhaustive list . It is rather a list of what the patient must understand based upon the information that must be disclosed to him by the physician . The statute specifically provides that the circumstances of each case determines whether information must be disclosed as well as whether a reasonable plaintiff would have gone forward with the operation or not had he been informed of those circumstances . Since the statute specifically provides that any shield from liability provided to the physician is dependent on whether the physician gave information within the accepted standard of medical practice among members of the medical profession , the affidavit filed in this case , which concluded that that had not taken place , prevented an order granting a motion for judgment on the pleadings .
UPCOMING PBCBA SOCIAL EVENTS
Wednesday , February 1 st 4:00 P . M . - 5:30 P . M . Bar Office Wine Down Wednesday
Sunday , February 5 th 11:00 A . M . - 2:00 P . M . Lion Country Safari
PBCBA Family Day at Lion Country Safari
Thursday , February 9 th 7:00 A . M . - 12:00 P . M . Main Courthouse
New Attorney Breakfast
Thursday , February 9 th 5:30 P . M . - 8:30 P . M . Game of Axes North County Section : Game of Axes Night
Thursday , February 23 rd 5:30 P . M . - 7:30 P . M . TBD YLS Happy Hour
Tuesday , February 28 th 2:00 P . M . - 4:00 P . M . PBC Court House
15th Judicial Circuit Pro Bono Awards Ice Cream Social
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PBCBA BAR BULLETIN 13