Professional Negligence Law Reporter

Bank v. Mickels, 2019 WL 1810893 (Neb. Apr. 25, 2019).

The Nebraska Supreme Court held that written informed consent is not required for a physician to meet the standard of care.

Here, Carl Bank underwent rotator cuff surgery performed by orthopedic surgeon Jason Mickels. During the postoperative period, Bank was involved in a near collision and began suffering pain afterward. Mickels performed a test to check Bank’s range of motion, which involved injecting a local anesthetic into the shoulder joint. Before the test, Mickels and Bank purportedly discussed the risk of infection from any injection, with Bank stating during the conversation that he had never experienced an infection from any of his tattoos. Bank experienced continued pain after the procedure, and he underwent additional diagnostic testing. Another orthopedic surgeon later performed a shoulder replacement, which revealed that a serious infection had eroded all of the cartilage in Bank’s shoulder joint. Bank and his wife sued Mickels, alleging medical malpractice and failure to obtain informed consent before performing the injection. At trial, the court advised the jury that written consent is not required for a physician to meet the standard of care. The jury returned a general verdict for the defense. The plaintiffs’ motions for a new trial or to amend the judgment were denied. On appeal, the plaintiffs argued that, among other things, the trial court had erred in instructing the jury that written consent is not required for informed consent.

Affirming, the state high court noted that under Neb. Rev. Stat. §44-2816, failure to obtain informed consent includes the failure to obtain any express or implied consent for any operation, treatment, or procedure where a reasonably prudent health care provider in the community or a similar community would have obtained such consent. Citing case law, the court found that informed consent encompasses a doctor’s duty to inform a patient of the risks involved in a treatment or surgery. Moreover, the court found, consent is a process and the culmination of a discussion between doctor and patient, not a document.

Citing §44-2816’s plain language and lack of ambiguity, the court found that the provision does not outline the form that informed consent should take and suggests that informed consent may be imparted in more than one form. Other states have mentioned written informed consent in their general informed consent statutes, but Nebraska has not done so, the court noted. Thus, the court held that §44-2816 does not require that informed consent be written, and the court’s jury instruction was not an incorrect statement of the law.