Wlosinski v. Cohn

Michigan Court of Appeals
269 Mich. App. 303, 713 N.W.2d 16 (2005)

ELI5:

Rule of Law:

The doctrine of informed consent does not legally require a physician to disclose their personal statistical success or failure rates for a medical procedure, as such statistics are not considered a risk inherent in the procedure itself.

Facts:

In May 1998, Michael Wrobel was diagnosed with kidney failure.
Wrobel and his mother, the plaintiff, researched hospitals and chose William Beaumont Hospital based on its high reported success rate for kidney transplants.
They met with Dr. Steven Cohn, who explained the kidney transplant procedure.
On July 14, 1999, Dr. Cohn performed a kidney transplant on Wrobel, with his mother serving as the donor.
Following the surgery, Wrobel suffered severe complications, including a blood clot, which ultimately led to the failure of the transplanted kidney.
After the failed kidney was removed, Wrobel resumed dialysis, but his health continued to decline.
Wrobel eventually elected to withdraw from dialysis and entered hospice care, passing away on September 24, 2000.

Procedural Posture:

On July 13, 2001, plaintiff filed a medical malpractice wrongful death action against Dr. Cohn and William Beaumont Hospital in a Michigan trial court.
Plaintiff amended her complaint to add a count for lack of informed consent, alleging a discrepancy between the defendants' reported and actual success rates.
Defendants moved for summary disposition on the informed consent claim.
The trial court denied the defendants' motion for summary disposition.
The case proceeded to a jury trial, where evidence of Dr. Cohn's failure rate was admitted.
The jury found in favor of the plaintiff and awarded her $1.475 million in damages.
The trial court entered a judgment on the verdict for approximately $1.5 million.
Defendants (appellants) appealed the judgment to the Michigan Court of Appeals.

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Issue:

Does the doctrine of informed consent require a physician to disclose their personal statistical success or failure rates for a medical procedure to a patient?

Opinions:

Majority - O’Connell, P.J.

No. The doctrine of informed consent does not require a physician to disclose their personal statistical success rates because raw success rates do not constitute risk information reasonably related to a patient's medical procedure. The court reasoned that a physician's success rate, by itself, is not a risk inherent in the medical procedure. Furthermore, the court held that admitting such statistics as evidence of negligence is improper because a poor outcome does not, by itself, prove malpractice, and it could be due to factors like treating high-risk patients. Allowing this evidence serves as prohibited character evidence under MRE 404(b)(1), as it encourages a jury to infer a physician has a 'propensity to fail' rather than focusing on the specific facts of the case.

Dissenting - Borrello, J.

Yes. A physician's duty to obtain informed consent should include disclosing provider-specific information, such as statistical failure rates, if a reasonable patient would find it material to their decision, and this determination should be a question for the jury. The dissent argued for a modern, 'patient-centered' view of informed consent over a narrow, 'procedure-specific' one. In this view, choosing a physician with a different success rate is a choice between alternate modes of treatment. The dissent concludes that creating a bright-line rule that such information is never required improperly invades the province of the jury, which is best suited to determine the standard of care based on the specific facts of a case.

Concurring-in-part-and-dissenting-in-part - Schuette, J.

No. The doctrine of informed consent does not require the disclosure of a physician's success/failure rate, and such evidence is inadmissible for that purpose. The author concurs with the majority's holding on the informed consent claim. However, the author dissents on the broader admissibility of the evidence, arguing that while the success/failure rate is inadmissible for the informed consent claim, it is relevant and admissible for a separate claim of negligent supervision against the hospital to establish the hospital's knowledge of the physician's skill. A new trial is nonetheless required because the trial court failed to issue a limiting instruction restricting the jury's use of this evidence to only the negligent supervision claim.

Analysis:

This decision establishes a clear, bright-line rule in Michigan that narrowly defines the scope of informed consent. By excluding physician-specific success rates from required disclosures, the court rejects a 'patient-centered' approach adopted in some other jurisdictions and reinforces a traditional, 'procedure-focused' standard. This precedent significantly protects physicians from claims based on their statistical track records, which the court views as prejudicial character evidence. Consequently, it makes it more difficult for future plaintiffs to bring informed consent actions based on a doctor's undisclosed performance history, thereby shaping the litigation landscape for medical malpractice in the state.

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