When does an informed consent claim require expert testimony? Nguyen v. IHC Health Services Explained

In medical malpractice cases, expert testimony is typically required to establish the standard of care and prove causation. However, the Utah Court of Appeals’ decision in Nguyen v. IHC Health Services clarifies an important exception for informed consent claims based on complete failure to disclose material information.

Background and Facts

One-year-old Derek Nguyen was critically injured in a car accident and admitted to Primary Children’s Medical Center’s pediatric intensive care unit. During treatment, Dr. Witte determined Derek needed a CT scan and used a test ventilator from a manufacturer to transport him. The ventilator was a sales model the hospital was evaluating for purchase and had never been used on a patient. Hospital protocol required using such equipment only on “moderately ill” patients and obtaining parental consent, but Dr. Witte used it on the critically ill child without informing his father of its experimental nature. During transport, the ventilator lost power and Derek died.

Key Legal Issues

The case presented multiple claims including negligence, failure to obtain informed consent, intentional infliction of emotional distress, and punitive damages. The district court excluded plaintiff’s expert witness and granted summary judgment on all claims, reasoning that expert testimony was required to establish each cause of action.

Court’s Analysis and Holding

The Court of Appeals affirmed summary judgment on the negligence, intentional infliction of emotional distress, and punitive damages claims, as well as the exclusion of plaintiff’s unqualified expert. However, it reversed on the informed consent claim. The court distinguished between two types of informed consent cases: those challenging the adequacy of disclosures made (requiring expert testimony) and those based on “complete absence of any disclosure about the untested nature of the ventilator.” Where a physician fails to disclose “any information concerning a material fact,” the court explained, “there is no question of skill and judgment, no question of practice beyond the knowledge of laymen which must be established through expert testimony.”

Practice Implications

This decision provides crucial guidance for medical malpractice practitioners. When pursuing informed consent claims, carefully analyze whether the claim challenges disclosure adequacy (requiring expert testimony about what information should have been provided) or alleges complete failure to disclose obviously material facts within common understanding. The latter may proceed without expert testimony, potentially surviving summary judgment motions that would otherwise succeed based on lack of expert evidence.