Millsap v. Williams
449 S.W.3d 291
Ark.2014Background
- Nash, father of Millsap, had colon cancer and underwent surgery by Dr. Williams; an NG tube was ordered after surgery and Nash repeatedly refused it.
- Dr. Williams placed the NG tube on November 6, 2009, after Nash showed distress and agitation; Nash then deteriorated and was transferred to ICU.
- Nash remained hospitalized until January 7, 2010; he died on September 4, 2010, with Millsap alleging post-discharge care issues.
- Millsap filed a wrongful-death suit on April 4, 2011, alleging lack of consent and improper placement of the NG tube caused injuries.
- Expert and lay testimony demonstrated Nash’s confusion, resistance to the NG tube, and alleged lack of informed consent and discussion about risks; Baptist Health policies related to consent were introduced.
- The circuit court instructed the jury using AMI Civ. 1508 and 1509 (informed consent) and rejected Millsap’s Statutory-consent instruction; the jury returned a verdict for Williams; the court reversed and remanded on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in giving informed-consent instructions. | Millsap contends AMI 1508/1509 were misleading since case involved lack of actual consent, not information adequacy. | Williams contends instructions matched the evidence and law; informed-consent issue was applicable to trial. | Reversed and remanded for proper consent-instruction analysis. |
| Whether the lack of proper consent instruction tainted the verdict. | Millsap argues absence of proper statutory-consent instruction left jury misdirected. | Williams argues existing verdict supported by evidence of consent. | Reversed and remanded for new trial. |
Key Cases Cited
- Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003) (proper instruction required if supported by evidence)
- Allstate Ins. Co. v. Dodson, 2011 Ark. 19, 376 S.W.3d 414 (2011) (nonmodel instructions may be improper when AMI exists)
- Nelson v. Stubblefield, 2009 Ark. 256, 308 S.W.3d 586 (2009) (AMIs preferred; nonmodel only when necessary)
- Boellner v. Clinical Study Ctrs., LLC, 2011 Ark. 83, 378 S.W.3d 745 (2011) (proper instruction when supported by evidence)