SERCOMBE, J.
Plaintiff brought an action against defendant for medical malpractice on the theory that defendant, an ophthalmologist, was negligent in screening and recommending plaintiff as an appropriate candidate for "monovision" eye surgery.
In 2002, plaintiff sought eye care from Dr. Mitchell to improve her vision for reading at close range. Mitchell prescribed plaintiff a single contact lens in order to induce "monovision," a condition in which one eye is calibrated to be nearsighted and the other eye is calibrated (in this case, naturally) to be farsighted. Thus, the contact lens created nearsightedness in plaintiff's left eye. However, not all people can adapt to monovision. Plaintiff tried the contact lens for two weeks but was unable to tolerate the visual effect. It caused nausea, headaches, and a general feeling of motion sickness. Consequently, plaintiff stopped using the contact lens and reverted to using reading glasses.
Two years later, in December 2004, plaintiff sought treatment from defendant at his eye care clinic. Plaintiff was evaluated to determine the suitability of using a surgical procedure called conductive keratoplasty (CK) — a process that uses radio frequencies to shape the curve of the cornea — to induce nearsightedness in her left eye, which would result in monovision. If successful, monovision would improve plaintiff's ability to read without the aid of glasses using only her left eye. Her right eye, left in its natural state, would be used for seeing at a distance.
On December 14, an eye clinic technician conducted a "loose lens test" to determine whether plaintiff could tolerate monovision and was an appropriate candidate for CK. In the loose lens test, prescriptive lenses of varying strengths were placed in front of plaintiff's left eye while she read from a hand-held card and a wall projection in an exam room. Plaintiff was able to read comfortably during the test. Afterward, she met with defendant, who told her that, on the basis of the loose lens test, she was a good candidate for CK. At the end of the visit, as defendant was leaving the exam room, plaintiff testified that she disclosed her prior experience with contact-lens-induced monovision and indicated that she had been unable to tolerate its effects. Plaintiff further testified that defendant assured her that surgically induced monovision would be different, and defendant proceeded with the plan to perform CK.
On December 29, the day of the surgery, plaintiff underwent a second loose lens test to verify the proper degree of adjustment or focus to induce in her eye. Defendant then performed CK on plaintiff. After the surgery, plaintiff experienced several negative effects, including sickness, vision problems, and difficulty engaging in certain personal and professional activities. Plaintiff's symptoms did not subside, and she eventually elected to undergo another procedure, which
Plaintiff subsequently brought suit against defendant. Her original complaint contained four claims for relief — two claims that defendant was negligent and two claims that defendant failed to obtain informed consent. Before trial, plaintiff dropped the informed consent claims. Ultimately, plaintiff's operative complaint contained two claims for relief. The first claim alleged that defendant was negligent
"in one or more of the [following] ways:
The second claim alleged that defendant was negligent in performing the second (2005) procedure by failing to correct, i.e., to eliminate, plaintiff's monovision.
Plaintiff moved in limine to exclude evidence relating to informed consent on the ground that it was irrelevant and unfairly prejudicial. Specifically, plaintiff sought to exclude informed consent documents, informational brochures addressing the procedure and its effects, and presurgical discussions related to the risks and potential results of CK. Defendant objected to the exclusion of that evidence, arguing that it provided important context for understanding defendant's interactions with plaintiff and demonstrated defendant's awareness of the risks of monovision in assessing whether plaintiff was an appropriate candidate for CK. The trial court granted plaintiff's motion, and the case was tried to a jury.
At multiple points during trial, defendant renewed his objection to the exclusion of "informed consent" evidence.
At trial, the parties disputed what the standard of care was. Plaintiff's experts testified that the standard of care required defendant to administer a trial of monovision with contact lenses before surgically inducing monovision in any patient. They also testified that, if a patient already had a history of monovision intolerance, she would not be qualified for CK unless she could successfully complete a new contact lens test. Thus, plaintiff's experts opined that defendant had violated the standard of care both as a general matter (by solely using a loose lens test to screen for monovision tolerance) and because defendant had proceeded with the CK surgery despite a contraindication in plaintiff's treatment history. Defendant's experts, on the other hand, testified that a loose lens test was the proper means of assessing a patient's tolerance for monovision and that defendant had satisfied the standard of care in this case. At the close of trial, the jury was instructed on only one claim: "Defendants were negligent because they proceeded with a monovision eye surgery without properly testing for Plaintiff's tolerance for monovision." As noted, the jury returned a verdict in plaintiff's favor.
On appeal, defendant argues that the trial court erred in granting plaintiff's motion to exclude evidence relating to informed consent.
Plaintiff responds that the evidence at issue — evidence relating to the nature of the procedure, the risks of surgery, alternative treatment, and patient expectations — would have been relevant only if she had alleged that defendant failed to obtain her informed consent, a claim not alleged in plaintiff's operative complaint. According to plaintiff, the evidence had no bearing on the standard of care in this case; that is, it did not prove or disprove whether defendant properly assessed plaintiff as an appropriate candidate for monovision eye surgery. To the extent that some of the evidence was relevant, plaintiff contends that its probative value was substantially outweighed by the danger of unfair prejudice because it could have led the jury to improperly believe that plaintiff had assumed the risk of defendant's negligence. Alternatively, plaintiff contends that, even assuming that some of the evidence was relevant, the trial court did not err in excluding the evidence in toto because defendant, in making his offer of proof, failed to sort inadmissible from admissible evidence, and the trial court was under no obligation to do that for him. We agree with plaintiff that the evidence was irrelevant and unfairly prejudicial.
We review whether evidence is relevant for errors of law. State v. Faunce, 251 Or.App. 58, 72, 282 P.3d 960 (2012). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401; see also OEC 402 (relevant evidence is admissible
For a medical negligence claim, the standard of care requires that a physician "use that degree of care, skill and diligence that is used by ordinarily careful physicians * * * in the same or similar circumstances in the community of the physician* * * or a similar community." ORS 677.095(1); see also Macy, 330 Or. at 449, 8 P.3d 204. In the present case, the jury had to determine whether defendant's assessment and recommendation for surgery departed from the treatment that other ophthalmologists in the community exercising ordinary care would have provided. Evidence of information conveyed to plaintiff concerning the nature of the procedure, its inherent risks, and available alternatives had no bearing on what the standard of care was or whether defendant deviated from that standard. Evidence of plaintiff's awareness of that information would neither have assisted plaintiff in proving negligence nor have assisted defendant in showing that he was not negligent. Put simply, what plaintiff was told bears no relationship to what defendant should have done. Nor was defendant's subjective state of mind — for instance, his own awareness of the risks — relevant to whether he acted in conformance with the standard of care. Macy, 330 Or. at 449-51, 8 P.3d 204. Rather, the only issue was whether the treatment furnished was objectively reasonable.
Defendant was not prohibited from testifying about any other aspects of his interactions with plaintiff. Defendant did, in fact, testify about his examination of plaintiff and the course of testing and treatment. He was also permitted to introduce evidence about what medical history he elicited from plaintiff, what specific opportunities were given to plaintiff to disclose the prior monovision trial, and whether plaintiff told him about that trial. (Defendant did not recall but admitted that it was possible.) Thus, defendant had the opportunity to directly refute plaintiff's version of events. Finally, defendant was not prohibited from testifying about the loose lens test or anything that bore on whether he met the standard of care in assessing whether plaintiff was a good candidate for monovision eye surgery.
Even assuming that some of the excluded evidence was relevant — for instance, to undermine the credibility of plaintiff's account or to cast the character of the presurgical encounters in a different light — the trial court did not abuse its discretion in concluding that the evidence was unfairly prejudicial. Relevant evidence may be excluded under OEC 403 if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" We review a determination under OEC 403 for an abuse of discretion. State v. Rubio/Galligan, 248 Or.App. 130, 137, 273 P.3d 238, rev. den., 352 Or. 107, 284 P.3d 485 (2012).
Here, the potential prejudicial effect of the evidence is readily apparent. Evidence that plaintiff was told about the risks of surgery raised the possibility that the jury might consider whether plaintiff assumed the risks of the surgery or consented to defendant's negligence. In other words, the evidence had a significant potential to confuse the jury
We note that, although there is no Oregon case directly on point, cases from other jurisdictions suggest that evidence of informed consent is irrelevant and unfairly prejudicial where a plaintiff alleges only negligence. See, e.g., Hayes v. Camel, 283 Conn. 475, 485-86, 927 A.2d 880, 889-90 (2007) ("Our sister state courts that have considered this issue uniformly have concluded that evidence of informed consent, such as consent forms, is both irrelevant and unduly prejudicial in medical malpractice cases without claims of lack of informed consent."); Liscio v. Pinson, 83 P.3d 1149, 1156 (Colo.App.2003) (noting general rule); Wright v. Kaye, 267 Va. 510, 528-30, 593 S.E.2d 307, 317 (2004) (similar); Waller v. Aggarwal, 116 Ohio App.3d 355, 357-58, 688 N.E.2d 274, 275-76 (1996) (similar).
Finally, to the extent that defendant assigns error to the exclusion of information conveyed to plaintiff preceding her second surgery, we conclude that any error in excluding that evidence was harmless. That is so because no claim for relief related to the second surgery was submitted to the jury.
Affirmed.
However, plaintiff's theory in this case was that she was never an appropriate candidate for surgery. In other words, under plaintiff's theory, her injuries categorically could not have occurred without negligence (because there should have been no surgery if defendant was not negligent). Thus, the risks of surgery were not relevant. In any event, the trial court did not preclude evidence related to the risks of surgery, but merely excluded evidence of communications with plaintiff about those risks.