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Florida Fourth DCA reverses multi-million dollar judgment for plaintiff in medical negligence lawsuit on the basis of improper informed consent jury instruction

On June 12, 2019, in Sherrer v. Hollingsworth, No. 4D18-830, a medical negligence case, the Florida Fourth DCA reversed a multi-million dollar plaintiff’s verdict and ordered a new trial after concluding that the jury had been improperly instructed by the trial judge on the theory of informed consent. The plaintiff claimed in her lawsuit that the defendant doctor acted negligently by failing to treat her necrotizing vasculitis in a timely manner with the drug Cytoxin.  The doctor asserted an affirmative defense of informed consent.  The issue of informed consent was not discussed before the jury at trial.  However, the trial judge granted the plaintiff’s request to include a lack of informed consent jury instruction, along with the general negligence instruction. The jury returned a verdict of over $15 million for the plaintiff.  Because the doctor agreed to a general verdict form, there was no specification as to whether the jury had concluded the case based on general negligence, lack of informed consent, or both.  On appeal, the Fourth DCA noted that  the doctrine of informed consent requires the doctor to give the patient sufficient information concerning a proposed treatment or procedure, but since the defendant doctor had never proposed Cytoxin as a possible treatment, his failure to offer Cytoxin to the patient had no connection with the informed consent theory of liability.  The Fourth DCA also considered the potential applicability of the “two-issue rule,” which holds that when more than one issue is presented to the jury, and the jury is instructed as to all of the issues presented without an objection to the use of a general verdict form, appellate reversal is improper without a showing of prejudice. See Barth v. Khubani, 748 So. 2d 260 (Fla. 1999). The Fourth DCA concluded that the two-issue rule was inapplicable because “there was only one issue properly presented to the jury. Requiring the doctor to add an improper issue to the verdict form in order to preserve the error would only have served to highlight the error further.”