Wednesday, October 20, 2021

Informed Consent Claim Dismissed Due to Lack of Expert Testimony

In the case of Bilinski v. Wills Eye Hospital, No. 2:16-CV-02728-GJP (E.D. Pa. Sept. 1, 2021 Pappert, J.), the court ruled a Plaintiff’s failure to produce expert medical testimony in support of a battery claim arising from lack of informed consent was fatal to the claims presented in that regard. 

However, the court otherwise noted that the Plaintiff was not required to produce expert medical testimony relative to an emotional distress claim as jurors could evaluate the emotional harm allegedly inflicted upon the Plaintiff due to the Plaintiff’s allegedly being subjected to a medical procedure against his will.

According to the Opinion, the Plaintiff reported to an eye surgeon for an evaluation to be fitted with cataract lenses. The Plaintiff alleged that the doctor evaluated both of the Plaintiff’s eyes but did not prescribe glasses.  Instead, the doctor allegedly grabbed the Plaintiff by the shirt telling him that he needed laser treatment immediately because his eyes were going to blow up.  The doctor then allegedly looked up at the ceiling and laughed. 

The Plaintiff alleged that the doctor physically grabbed the Plaintiff and led him to another room where a laser procedure was performed on the Plaintiff’s right eye. The Plaintiff alleged that the doctor, who was a surgery fellow, had not consulted with any attending physician and had completed the procedure without supervision and without the Plaintiff’s consent. All of these allegations were denied by the defense.

As noted, the court granted in part and denied in part the Defendants’ Motion to Dismiss. The court agreed with the Defendants that the Plaintiff’s failure to retain a medical expert was fatal to some of the claims presented.

The court also ruled that there was a genuine factual dispute as to whether or not the Plaintiff had consented to the laser procedure.

The court additionally noted that, while the Plaintiff was required to have produced expert medical testimony to prove that he sustained physical harm and suffering due to the alleged medical battery, the Plaintiff did not need an expert to support his claim for emotional distress as, in the court’s eyes, jurors could understand the emotional trauma of being subjected to a medical procedure without consent. As such, the Plaintiff’s emotional trauma claim was allowed to proceed.

The court otherwise ruled that the Plaintiff did need to produce an expert to support his lack of informed consent claim in order that the jury may be educated on what would constitute informed consent in a medical setting.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 23, 2021).

Source of image:  Photo by David Travis on

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