Holley v. Huang
2011 Colo. App. LEXIS 734
Colo. Ct. App.2011Background
- Holley sued Huang for lack of informed consent for cireumareolar mastopexy performed on Holley’s right breast.
- elements required: negligent failure to obtain informed consent, a reasonable patient would not have consented given the information, and causation of damages.
- jury found Huang had obtained Holley’s informed consent; trial court denied Holley’s request for a new trial.
- Holley proffered expert testimony on documentation of informed consent, which the court had disallowed.
- Holley attempted to prove the second element via her own testimony about what she would have done; the court excluded it, later deemed erroneous but harmless.
- Court considereds several other challenges including habit instruction, standard-of-care framing, juror question, expressed/implied consent, and carrying instructions; affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Holley’s testimony on what she would have done | Holley argues her hindsight testimony is relevant to what a reasonable person would have decided. | Court properly excluded as prejudicial under CRE 408. | Abuse of discretion, harmless error. |
| Expert testimony on documentation of informed consent | Documentation of consent is necessary and expert should testify about standard of care. | Documentation not required; doctors may inform by any means; trial court proper to exclude. | Correct ruling; no reversible error. |
| Habit instruction on habit testimony | Habit instruction allowed jury to credit habit evidence; objected. | Instruction accurate but should not guide deliberations. | Instruction erroneous to give; no reversible error. |
| Standard of care instruction and related framing | Standard of care should be explicit; defense bias implied by the court’s framing. | Court properly instructed negligence based on evidence and law. | No reversible error; fair trial overall. |
| Carrying instruction and verdict forms | Pattern forms should have been used. | Court properly modified to fit the case. | No abuse of discretion; no reversible error. |
Key Cases Cited
- Garhart ex rel. Tinsman v. Columbia/Healthone, L.L.C., 95 P.3d 571 (Colo. 2004) (informed-consent duties and permissible communication methods)
- Maercklein v. Smith, 266 P.2d 1095 (Colo. 1954) (consent form not legally required; documentation laudable but not required)
- Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (patient testimony relevant to objective standard for informed consent)
- People v. District Court, 869 P.2d 1281 (Colo. 1994) (probative value vs. unfair prejudice standard for evidence)
- District Court, 785 P.2d 141 (Colo. 1990) (probative value and prejudice balancing in evidence rulings)
- Krueger v. Ary, 205 P.3d 1150 (Colo. 2009) (principles on evaluating evidentiary emphasis and weight)