Informed Consent Not Relevant To Medical Malpractice Claim

Facts of Case

Patient Josephine Wilson brought a claim for medical malpractice against Dr. Rohtashav Dhir and his practice group. Dr. Dhir performed an endoscopy on Ms. Wilson to examine her esophagus. Prior to performing the procedure, Dr. Dhir documented that Ms. Wilson understood she might need dilation of her esophagus depending on the findings. Ms. Wilson signed and informed consent stating she understood the risks and benefits of the procedure.

Dr. Dhir then performed the endoscopy. He found Ms. Wilson’s esophagus to be normal. Despite this, he proceeded with the dilation of the esophagus. During the dilation, Ms. Wilson’s esophagus was torn. She required surgery to repair the tear. The repair surgery involved opening her chest, spreading her ribs, and collapsing one of her lungs.

Ms. Wilson subsequently filed suit for medical malpractice. She claimed the dilation was unnecessary in light of the finding of a normal esophagus. She did not claim a lack of informed consent. The defendants did not raise informed consent as an affirmative defense.


During trial, the defense referred to the informed consent and the fact Ms. Wilson had signed it in opening statement. Defense counsel also questioned Ms. Wilson and Dr. Dihr about the informed consent process. Ms. Wilson’s attorney only objected to the reference to informed consent during Dr. Dihr’s testimony. At the close of evidence, Ms. Wilson’s attorney requested the jury be instructed to disregard the evidence of the informed consent as it injected a false issue in the case. The trial court refused to instruct the jury to disregard the evidence of informed consent. The jury eventually found in favor of Dr. Dihr and his practice.

Decision on Appeal

The Missouri Supreme Court heard the case and held in favor of Ms. Wilson. The Court noted that cases alleging improper care and cases alleging lack of informed consent are separate theories of medical malpractice. In cases involving claims of improper care, evidence of informed consent is irrelevant. The Supreme Court held that the jury should have been instructed to disregard the evidence. Because of this, it overturned the verdict in favor of the defendants.

The full opinion can be found here.