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Medical Malpractice and Lack of Informed Consent Appeal

By FindLaw Staff on March 03, 2010 | Last updated on March 21, 2019

Willis v. Bender, No. 07-8057, involved an action against a surgeon for lack of informed consent and medical malpractice.

As the court of appeals wrote:  "Dr. D. Scott Bender, a general surgeon, perforated Marcy Willis' small bowel while performing a laparoscopic cholecystectomy (laparoscopic surgery to remove her gallbladder). Relevant here, Willis sued Bender for lack of informed consent and medical malpractice. The district court granted summary judgment to Bender on the informed consent claim. The medical malpractice claim proceeded to a jury trial. Willis requested a "captain of the ship" jury instruction which would have allowed the jury to hold Bender liable for his surgical assistant's negligence. The jury found in favor of Bender."

The court of appeals partially affirmed judgment for defendant on the ground that there was no evidence, specifically expert testimony, that another physician was negligent and therefore no basis to hold defendant liable for his negligence.  However, the court reversed the judgment in part, holding that defendant's alleged misrepresentations to plaintiff in response to her direct questions allegedly induced her to consent to the surgery and its risks, and under those circumstances, if proved, her consent could hardly be considered "informed."

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