Downs v. Trias
It is not an abuse of discretion to bar testimony about whether or not a genetic test would have shown a patient possessed a predisposition to develop cancer. In 1981, the plaintiff, Allison Downs, 22, underwent a bilateral mastectomy, because her mother and grandmother had breast cancer and passed away. Downs developed tumors in her uterus and underwent a partial hysterectomy in 2005, in which only her uterus was removed, not her ovaries. Allegedly, the defendant gynecologist, Orlito Trias, failed to strongly advise Downs to remove the ovaries. About one year later, Downs was diagnosed with ovarian cancer. Downs sued Trias, alleging that he failed to provide proper gynecological care, to strongly advise her to remove the ovaries and to inform her that a family history of breast cancer increased the risk of ovarian cancer. The jury awarded $4 million. Trias appealed and objected to evidentiary decisions and jury instructions. The Supreme Court rejected Trias' claim that Downs' complaint only alleged lack of informed consent and failed to allege malpractice. The trial court properly admitted testimony about the standard of medical care and instructed the jury about malpractice. The trial court did not abuse its discretion when it barred testimony about whether a genetic test would have shown Downs possessed a predisposition to develop ovarian cancer. "A counterfactual, retrospective analysis of what information actually would have been obtained had the genetic test been conducted," wrote the Supreme Court, "would have had no bearing on whether the defendant complied with the standard of care." Trias also argued that testimony that Downs would have removed her ovaries, if aware of the cancer risk, was conjectural. A lay witness may testify about a choice she would have reached, based on experience. Downs possessed sufficient life experience to testify about whether she would have arranged to have ovaries removed. Trias failed to establish expert testimony was required with respect to a quintessentially lay decision. The Supreme Court affirmed the judgment of the trial court. Concurring, Justice Peter Zarella opined that Downs' complaint only alleged medical malpractice and failed to allege lack of informed consent.