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Citing errors in a verdict sheet, a federal appeals court has ordered a new trial in the case of an 11-year-old girl who won a $1.35 million verdict for a gynecological exam conducted without her consent. The 2nd U.S. Circuit Court of Appeals instructed Eastern District of New York Judge Sterling Johnson Jr. to hold a new trial on claims of battery and uninformed consent and malpractice for the girl, who was given the exam because authorities thought she had given birth to a baby who had been found on her window ledge. The circuit in Armstrong v. Brookdale University Hospital and Medical Center, 02-7801, written by Judge Rosemary Pooler, found that verdict sheet errors “and the confusion they generated caused the jury” to render an inconsistent verdict. In 1995, 11-year-old Chanel Armstrong told her elder sister, Tashawn, that she saw something moving in a bag on the ledge outside her bedroom window. Tashawn climbed onto the roof and grabbed the bag, finding an infant inside. Emergency medical personnel and the police who were called to the building suggested that Chanel had given birth to the baby and then thrown it out the window. They repeated the charge when Chanel’s mother, Carol Armstrong, arrived home and they suggested that Chanel would be detained unless she came to the hospital for an examination. Ms. Armstrong claimed that once at the hospital doctors examined Chanel over protests by the mother and daughter. The doctors concluded that it was “highly unlikely” that Chanel had given birth. Chanel and her mother settled a lawsuit against New York City, the New York Police Department, the New York City Housing Authority and several police officers for $260,000 in 1998. They then sued the doctors and the hospital for medical malpractice; a violation of New York Public Health Law �2805, which governs how doctors can be held liable for failing to obtain informed consent; negligence; and battery. On the appeal, Judges Pooler and Dennis Jacobs concluded that the verdict sheet errors led the jury to render a verdict for the Armstrongs “on one count — performing a medical procedure without informed consent — inconsistent with its answers to specific interrogatories and to fail to reach another count — battery — on which interrogatory answers suggested it may have found in plaintiff’s favor.” Pooler wrote that plaintiffs who prevail in medical malpractice action must ordinarily show that the doctor deviated from the standard of care practiced by a “reasonably prudent doctor” in her area. But even where the doctor meets that standard of care, “the patient may recover for injuries she suffered as a result of the procedure or examination if the doctor failed to obtain her informed consent and the claim is not barred by failure to demonstrate one of the several showings required by New York Public Health Law �2805-d,” she said. “Distinct” from a claim under �2805-d, Pooler said, is the tort of battery, which involves the intentional touching of another person without her consent with the intent to cause bodily contact that a reasonable person would find offensive. The court concluded that “battery applies in the medical context only where the patient or her guardian gives NO consent and the doctor intends to ’cause a bodily contact that a reasonable person would find offensive.’” “On the other hand,” Pooler said, “an informed consent violation occurs when the doctor obtains consent without giving the patient appropriate information concerning risks and alternatives.” BOTH SIDES DISADVANTAGED Here, when jurors held that the doctors did not obtain Carol’s consent, they were instructed to determine whether this was the proximate cause of Chanel’s injuries and “their affirmative response led them to assess damages,” Pooler said. “This was error disadvantaging the defendants because, in order to find for the plaintiff on an informed consent theory, the jury must also find that the procedure was invasive, that it was not required by emergency conditions, that the doctors failed to give the appropriate advice, and that a reasonable person given appropriate advice would have consented,” she said. And although defense counsel pointed out the error and the court “rectified it in part” by requiring the jury to answer additional questions, the district court did not ask the jury to answer questions on battery. “This approach — resubmitting the informed consent claim, but not the battery claim — to the jury was disadvantageous to the infant plaintiff,” Judge Pooler said, because the jury’s initial finding that the doctors touched Chanel without her consent “suggests it might have found for plaintiff on the battery claim had it not been advised that it could not find battery if it found a species of negligence.” Pooler said that, in situations where answers to special interrogatories are consistent with each other but inconsistent with the general verdict, the court has the option of either “entering judgment in accordance with the interrogatories” or returning the issue to the jury for further consideration. But Federal Rule of Civil Procedure 49(b) “does not, however, authorize the court to enter judgment based on the general verdict despite answers to interrogatories that conflict with that verdict.” Here, the jury found that the procedure was neither a non-emergency procedure nor an invasive diagnostic procedure, which precluded a recovery for lack of informed consent — and yet they “inconsistently” awarded damages, Pooler said. A subsequent attempt by the trial court to obtain clarification from the jury was unsuccessful, the judge said. “Section 2805-d clearly prohibits recovery if a reasonable and properly informed person would have consented, but the verdict sheet instead made such a reasonable person’s consent a prerequisite to recovery,” she said. “Thus, it misinformed the jurors in a critical way and undermined the integrity of the trial.” Turning to the battery claim, the court concluded that “the jury’s failure to consider the battery claim was a miscarriage of justice.” The court directed that judgment be entered in favor of the hospital and remanded the remainder of the case for a new trial on the battery claim against two of the doctors and a new trial on the informed consental practice claim against one of the doctors. Steven T. Mitchell represented the plaintiff. Steven J. Ahmuty Jr. of Shaub, Ahmuty, Citrin & Spratt in Lake Success and Christopher Simone of Wilson Elser Moskowitz Edelman & Dicker represented the defendants.

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