AMI 1509 Proximate Cause—Informed Consent

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1509

Arkansas Model Jury Instructions-Civil

December 2023 Update

Arkansas Supreme Court Committee On Jury Instructions-Civil

Chapter 15. Malpractice and Breach of Fiduciary Duty

AMI 1509 Proximate Cause—Informed Consent

In determining whether the failure to obtain an informed consent was a proximate cause of any damages sustained by (plaintiff), you may consider the following factors:

(a) Whether (plaintiff/person giving consent on behalf of plaintiff) knew, or whether a person of ordinary intelligence and of awareness in a position similar to that of (plaintiff/person giving consent on behalf of plaintiff) could reasonably be expected to know, of the risks or hazards inherent in such [treatment][procedure][surgery];

(b) Whether (plaintiff) would have undergone [treatment][procedure][surgery], regardless of the risks involved, or whether [he][she] did not wish to be informed thereof.

NOTE ON USE

This instruction should be given in addition to AMI 501 when a question is submitted as to whether adequate information was supplied by the medical care provider in connection with the granting or withholding of consent to treatment.

This instruction should not be given when 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. Instead, an appropriate non-model instruction should be given.

COMMENT

This instruction enumerates the proximate cause factors set forth in Ark. Code Ann. § 16-114-206(b)(2)(A), (B), and (C). Although the statute appears to list these factors in the context of the duty owed, it is clear that they are relevant to the causation issue. The factor contained in Ark. Code Ann. § 16-114-206(b)(2)(D) relates to the duty owed and is contained in AMI 1508. A plaintiff does not necessarily have the burden of proving that he or she would not have consented to the procedure had the medical provider adequately informed him or her of its risks. The test is the objective one of "whether a reasonable prudent patient would not have consented to the surgery." Aronson v. Harriman, 321 Ark. 359, 901 S.W.2d 832 (1995).

The Arkansas Supreme Court in Millsap v. Williams, 2014 Ark. 469, ruled that it is an abuse of discretion to give this instruction when 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. For discussion of Millsap, see the Comment to AMI 1506.

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