Home Table of Contents

AMI 1506 Issues—Claim for Damages Based on Medical Injury—Informed Consent—Burden of Proof

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1506
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 15. Malpractice and Breach of Fiduciary Duty
AMI 1506 Issues—Claim for Damages Based on Medical Injury—Informed Consent—Burden of Proof
(Plaintiff) claims damages from (defendant) and [has][have] the burden of proving each of three essential propositions:
First, that [he][she] has sustained damages;
Second, that [and , or one of them,] failed to supply adequate information to obtain an informed consent to the [treatment][procedure][surgery];
Third, that such failure was a proximate cause of (plaintiff's) damages.
[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for (plaintiff) (against the party or parties found to be liable); but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for (defendant).]
NOTE ON USE
This instruction should be used, rather than AMI 203, when the only issue submitted to the jury is that of lack of informed consent.
When there is no issue of informed consent submitted, AMI 1501 should be used.
Where informed consent is submitted in conjunction with any other bases of liability, use AMI 1507.
When this instruction is used, also use AMI 1508 and 1509.
Do not use the final bracketed paragraph when the case is submitted on interrogatories, or where affirmative defenses are in issue.
If the plaintiff claims that the medical care provider failed to obtain any consent to treatment from the patient when consent was required, rather than that the medical care provider failed to provide adequate information, this instruction should be modified accordingly.
COMMENT
This instruction is based on Ark. Code Ann. § 16-114-206(b)(1), a provision of the Arkansas Medical Malpractice Act that pertains specifically to informed consent claims. It embraces the concept that failure to supply adequate information to obtain an informed consent is a distinct basis of liability from that of negligence. See Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995) (affirming a verdict in favor of the defendant physician on negligence claim but in favor of the plaintiff and awarding damages on the claim of lack of informed consent); Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995) (breach of express warranty is a distinct basis of liability from that of negligence).
The Arkansas Supreme Court has distinguished cases involving the complete absence of consent from those based on the medical care provider's failure to provide adequate information. The court ruled that it was error to give AMI 1508 and 1509—“instructions regarding informed consent”—when the plaintiff's claim was not that the physician had failed to supply adequate information but instead that he had performed the procedure “without any consent” by the patient or someone on the patient's behalf. Millsap v. Williams, 2014 Ark. 469 at 14. The court noted that there “was no model instruction regarding consent to treatment, and the instructions related to informed consent were not applicable” to such a case. Id. The trial court in Millsap gave a modified version of AMI 1507, stating that plaintiff had asserted the medical care provider's negligence and failure to obtain “proper consent” to treatment as grounds for recovery; but the trial court rejected plaintiff's proffered non-model instruction based on Ark. Code Ann. §§ 20-9-601 to -603 (Repl. 2014) (“Consent to treatment,” defining who may consent, when consent may be implied from the circumstances, and when courts may give consent). The Arkansas Supreme Court observed that “there were no further instructions given that explained when a doctor must obtain consent, how consent may be given, or who may give consent.” 2104 Ark. 469 at 13. Instead, the trial court gave AMI 1508 and 1509. The Arkansas Supreme Court concluded that AMI 1508 and 1509 were inapplicable and confusing, noted that non-model instructions may be given when there are no applicable instructions, and further noted that “this court has held that it is error for the circuit court to fail to instruct the jury on a statute applicable to the case.” 2014 Ark. 469 at 14-15, citing Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d 414. The court did not, however, specify the elements of a no-consent claim or the legal theory on which it is based, nor did the court explicitly approve the plaintiff's proffered instructions. Further, the Millsap court did not discuss the traditional view, still followed in a number of other jurisdictions but not previously addressed by the Arkansas court, that performance of non-emergency surgical procedures without the patient's consent constitutes a battery. For a collection of such cases from other jurisdictions, see Consent as Condition of Right to Perform Surgical Procedures, 139 A.L.R. 1370 (2014 Cum. Supp.). Given the likelihood that no-consent cases are infrequent and the absence of specific guidance in Arkansas law, the Committee has not drafted model instructions for such cases.
End of Document