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Decisions of the Nebraska Court of Appe

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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.

Cite as 24 Neb. App. 75

Denice Hillyer, appellant, v. Midwe

Gastrointestinal Associates, P.C.,

Bradley Schroeder, M.D., appell

___ N.W.2d ___

Filed June 14, 2016. No. A-15-138.

1. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

2. ____: ____: ____. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party.

3. Malpractice: Physician and Patient: Proof: Proximate Cause. In 

a malpractice action involving professional negligence, the burden of 

proof is upon the plaintiff to demonstrate the generally recognized 

medical standard of care, that there was a deviation from that standard 

by the defendant, and that the deviation was the proximate cause of the 

plaintiff’s alleged injuries.

4. Rules of Evidence: Words and Phrases. Pursuant to Neb. Evid. R. 

401, Neb. Rev. Stat. § 27-401 (Reissue 2008), relevant evidence means 

evidence having 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.

5. Rules of Evidence. Pursuant to Neb. Evid. R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2008), relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.

6. ____. Pursuant to Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 

2008), evidence which is not relevant is not admissible.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/14/2016 09:07 AM CDT
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7. Evidence: Malpractice: Negligence: Informed Consent. Evidence of 

risk-of-procedure or risk-of-surgery discussions with the patient is generally irrelevant and unfairly prejudicial where the plaintiff alleges only 

negligence, and not lack of informed consent.

8. Testimony: Appeal and Error. Error in the admission of irrelevant and 

inadmissible testimony does not require reversal if the trial court gave a 

sufficient curative instruction.

9. Jury Instructions: Presumptions. It is presumed a jury followed the 

instructions given in arriving at its verdict, and unless it affirmatively 

appears to the contrary, it cannot be said that such instructions were 

disregarded.

Appeal from the District Court for Douglas County: Shell

R. Stratman, Judge. Affirm

Greg Garland, of Greg Garland Law, Tara DeCamp, of 

DeCamp Law, P.C., L.L.O., and Kathy Pate Knickrehm for 

appellant.

Brien M. Welch and David A. Blagg, of Cassem, Tierney, 

Adams, Gotch & Douglas, for appellees.

Moore, Chief Judge, and Irwin and Bishop, Judge

Bishop, Judge

Denice Hillyer brought a medical malpractice action 

against Bradley Schroeder, M.D., and his employer, Midwest 

Gastrointestinal Associates, P.C. (MGI), based on alleged negligence in the course of performing a colonoscopy. The district 

court for Douglas County entered judgment on the jury’s verdict in favor of Dr. Schroeder and MGI.

Hillyer appeals, alleging the trial court erred in allowing 

evidence of Dr. Schroeder’s discussions with Hillyer and 

other patients regarding risks and complications associated 

with colonoscopies. We find that under the circumstances of 

this case, it was error to allow evidence of such discussions 

by Dr. Schroeder, because the medical malpractice action did 

not include a claim for lack of informed consent, making 

such evidence irrelevant as to whether Dr. Schroeder deviated 
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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.

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from the standard of care. However, any error in admitting 

such evidence does not constitute reversible error given the 

trial court’s curative instruction to the jury. Accordingly, 

we affirm.

BACKGROUND

On August 17, 2011, Hillyer went to a medical facility in 

Omaha, Nebraska, for a screening colonoscopy. Dr. Schroeder 

performed the colonoscopy. During the colonoscopy, Hillyer’s 

colon was perforated. As a result of the perforation, Hillyer 

required emergency surgery to repair the perforation, was hospitalized for several weeks, and had an ileostomy bag for 51

⁄2

months until a subsequent surgery was performed. She had various other injuries, both physical and emotional, and incurred 

more than $300,000 in medical expenses.

Hillyer initially filed a complaint against Dr. Schroeder and 

MGI for medical malpractice alleging professional negligence 

and lack of informed consent. However, in her amended complaint, Hillyer alleged only professional negligence; her claim 

for lack of informed consent had been withdrawn. Specifically, 

Hillyer alleged that Dr. Schroeder was negligent because he 

used excessive force while performing a colonoscopy on her 

and that such excessive force caused the shaft of the “colonoscope” to perforate her colon.

Hillyer filed a motion in limine asking that the following 

matters not be mentioned in the jury’s presence:

15. All medical consent forms, including but not limited to, consent to treat and perform the colonoscopy. . . .

16. Any discussion that [Hillyer] was aware of the risks 

and complications of colonoscopies. . . .

17. Any discussion regarding the practice and/or routine of explaining risks of procedures to patients.

Hillyer sought exclusion of the above matters on the basis of 

“NRE 402 Relevance, 403 Relevance outweighed.” In their 

amended response to Hillyer’s motion in limine, Dr. Schroeder 

and MGI did not object to paragraph 15. They did however 

object to paragraphs 16 and 17, arguing:
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HILLYER v. MIDWEST GASTROINTESTINAL ASSOCS.

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This evidence is relevant to establish the facts and circumstances leading to the perforation in this case. The 

average layperson has undergone a medical procedure 

and has experienced an informed consent discussion with 

his/her physician. Accordingly, members of the jury may 

be led to incorrectly infer that such a conversation did 

not occur in this matter between Dr. Schroeder and 

[Hillyer] if Dr. Schroeder is prohibited from discussing 

that such a conversation did occur prior to the procedure. Additionally, this discussion is relevant to establishing the facts and circumstances of the procedure at 

issue and Dr. Schroeder’s recollection of his interactions 

with [Hillyer].

During a hearing on the motion in limine, the trial court sustained Hillyer’s motion with regard to paragraph 15, citing no 

objection by Dr. Schroeder or MGI. However, the trial court 

reserved ruling on paragraphs 16 and 17.

During the jury trial, the only real issues were whether Dr. 

Schroeder used excessive force during Hillyer’s colonoscopy 

(thereby deviating from the standard of care) and, if so, the 

extent of Hillyer’s damages. Hillyer testified regarding the 

injuries she sustained, the treatment she underwent, and the 

damages she incurred as a result of her perforated colon.

Hillyer’s expert, Dr. Mark Molos, testified that the standard of care requires a physician performing a colonoscopy to 

“advance the scope under the appropriate amount of exertion or 

pressure.” Based on his review of the case, Dr. Molos opined 

that Dr. Schroeder breached the standard of care by applying 

excessive force and pressure, which resulted in a “shaft loop” 

perforation of Hillyer’s colon. Dr. Molos testified that “[a] 

shaft loop perforation by definition is caused by excessive 

pressure and force.” He also opined that only excessive force 

would cause a perforation the size that Hillyer had, which was 

6 to 7 centimeters. On cross-examination, Dr. Molos agreed 

that just because a patient has a medical complication does 

not mean that the doctor fell below the standard of care, that 
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complications can and do occur even when the doctor provided 

excellent care, and that perforations can occur even when the 

doctor is meeting the standard of care.

Dr. Schroeder’s expert, Dr. Alan Thorson, testified that 

perforations are a known and accepted complication of colonoscopies and that a colon perforation can occur even when 

the best medical care is provided. Dr. Thorson disagreed with 

Dr. Molos’ testimony that a large perforation like Hillyer’s 

could have occurred only due to excessive force. Dr. Thorson 

opined that Hillyer’s abdominal adhesions were a proximate 

cause of her perforation. According to Dr. Thorson, adhesions 

can hold the colon in a more fixed position, and when doing 

a colonoscopy, the endoscopist “can end up with a pressure 

against the colon that’s enhanced because of the fixation of the 

adhesions even though [the endoscopist] might be putting very 

acceptable pressure [sic]”; the endoscopist might not even feel 

resistance when advancing the scope. Based on his review of 

the case, Dr. Thorson opined that Dr. Schroeder met the standard of care and did not use excessive force while performing 

Hillyer’s colonoscopy.

Both experts had their credibility challenged. For example, 

Dr. Molos was questioned regarding his honesty, personal history of being sued for malpractice, and long history of testifying in medical malpractice cases (usually on behalf of plaintiffs). And Dr. Thorson was questioned regarding potential bias 

in favor of Dr. Schroeder due to patient referrals.

Dr. Schroeder testified regarding the steps he takes before 

doing colonoscopies: He meets the patients, gets their health 

histories, does a physical examination, and then begins the consent process. Over Hillyer’s repeated objections, Dr. Schroeder 

was allowed to testify that with every patient, he goes through 

the list of complications and risks for the procedure, including 

perforations and the potential need for surgery, the alternatives, and the fact that a patient does not even have to do the 

examination. Hillyer also objected to Dr. Schroeder’s testimony that he goes through the same process every time and 
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has had patients refuse the procedure after discussion. Dr. 

Schroeder was further allowed to testify, over objection, that 

he discussed potential complications and risks, including perforation and the potential need for surgery, with Hillyer prior 

to her colonoscopy.

Dr. Schroeder testified that he did not encounter resistance 

while performing Hillyer’s colonoscopy and did not use excessive force to advance the colonoscope. He stated he met the 

standard of care when he performed Hillyer’s colonoscopy.

The jury returned a unanimous verdict in favor of Dr. 

Schroeder and MGI, and the court entered judgment accordingly. Hillyer timely appeals.

ASSIGNMENTS OF ERROR

Hillyer assigns that the trial court abused its discretion 

and committed prejudicial error in allowing evidence of Dr. 

Schroeder’s discussions with Hillyer and other patients regarding risks and complications associated with colonoscopies.

STANDARD OF REVIEW

[1] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will 

not be disturbed on appeal unless they constitute an abuse of 

that discretion. Gallner v. Larson, 291 Neb. 205, 865 N.W.2d 

95 (2015).

[2] In a civil case, the admission or exclusion of evidence is 

not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party. In re Estate of Clinger, 292 

Neb. 237, 872 N.W.2d 37 (2015).

ANALYSIS

[3] In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate 

the generally recognized medical standard of care, that there 

was a deviation from that standard by the defendant, and 

that the deviation was the proximate cause of the plaintiff’s 

alleged injuries. Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 
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460 (2008). In the instant case, there was no dispute that 

Hillyer’s colon was perforated during a colonoscopy performed 

by Dr. Schroeder. The only real issues at trial were whether Dr. 

Schroeder used excessive force during Hillyer’s colonoscopy 

(thereby deviating from the standard of care) and, if so, the 

extent of Hillyer’s damages.

As stated above, prior to trial, Hillyer filed a motion 

in limine to exclude evidence of any discussions (with Dr. 

Schroeder) that she was aware of the risks and complications 

of colonoscopies and any discussion regarding the practice 

or routine of explaining risks of procedures by Dr. Schroeder 

with his patients. The reasons cited in Hillyer’s motion were 

“NRE 402 Relevance, 403 Relevance outweighed.” At the 

hearing on the motion, the trial court reserved ruling as to 

these discussions. In its order on the motion in limine, which 

was not filed until the day after the jury returned its verdict 

in the case, the court said it had reserved ruling as to these 

discussions but “sustained as to the actual consent form and 

phrases contained in medical records stating ‘After receiving 

informed consent.’”

[4-6] Pursuant to Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 

(Reissue 2008), “[r]elevant evidence means evidence having 

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.” However, 

relevant evidence may be excluded “if its probative value is 

substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation 

of cumulative evidence.” Neb. Evid. R. 403, Neb. Rev. Stat. 

§ 27-403 (Reissue 2008). Evidence which is not relevant is 

not admissible. Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 

(Reissue 2008).

During trial, Dr. Schroeder was allowed to testify, over 

Hillyer’s repeated objections, regarding his discussions with 

Hillyer about the risks and complications of colonoscopies 
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and regarding his practice or routine of explaining risks of 

procedures to his patients. These are the “discussion[s]” which 

were at issue in Hillyer’s motion in limine and on which the 

trial court had reserved making a ruling. As discussed next, we 

conclude it was error to allow such testimony.

Although this is a case of first impression in Nebraska, cases 

from other jurisdictions suggest that evidence of informed consent and risk-of-surgery discussions is irrelevant and unfairly 

prejudicial where a plaintiff alleges only negligence, and not 

lack of informed consent. By our count, eight states have 

addressed the issue. Of those eight, one state specifically dealt 

with risk-of-surgery discussions, rather than consent forms. 

See Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004). Six 

states dealt with evidence of both risk-of-surgery discussions 

and consent forms. See, Hayes v. Camel, 283 Conn. 475, 927 

A.2d 880 (2007); Matranga v. Parish Anesthesia of Jefferson, 

170 So. 3d 1077 (La. App. 2015); Schwartz v. Johnson, 206 

Md. App. 458, 49 A.3d 359 (2012); Waller v. Aggarwal, 116 

Ohio App. 3d 355, 688 N.E.2d 274 (1996); Warren v. Imperia, 

252 Or. App. 272, 287 P.3d 1128 (2012); Brady v. Urbas, 111 

A.3d 1155 (Pa. 2015). And one state dealt solely with evidence 

of the actual consent forms in a negligence action. See Baird 

v. Owczarek, 93 A.3d 1222 (Del. 2014). All of the aforementioned cases found the evidence inadmissible.

In Wright v. Kaye, supra, a patient brought a medical malpractice action against her surgeon, alleging he negligently 

performed a procedure. The patient filed a motion in limine 

seeking to exclude any testimony regarding preoperative discussions between her and her surgeon concerning the risks of 

surgery. The patient argued that because she did not claim the 

surgeon failed to obtain her informed consent, any testimony 

concerning discussion of the risks of surgery was not relevant 

to either negligence or causation and would only confuse the 

jury. The trial court denied the motion, ruling, “‘If you don’t 

show that [the doctor advised the patient concerning any risk 

prior to surgery], immediately you’ve implied that maybe this 
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doctor is negligent to begin with.’” Id. at 528, 593 S.E.2d at 

317. On appeal, the Virginia Supreme Court determined that 

under the facts of that case, the trial court’s ruling was erroneous. The Virginia Supreme Court stated:

In resolving this issue, it is a particularly salient fact that 

[the patient] does not plead or otherwise place in issue 

any failure on the part of the [surgeon] to obtain her 

informed consent. Her claim is simply that [the surgeon] 

was negligent by deviating from the standard of care in 

performing the medical procedure at issue.

Seen in that context, evidence of information conveyed 

to [the patient] concerning the risks of surgery in obtaining her consent is neither relevant nor material to the 

issue of the standard of care. Further, the pre-operative 

discussion of risk is not probative upon the issue of 

causation: whether [the surgeon] negligently performed 

the procedure.

[The patient’s] awareness of the general risks of surgery is not a defense available to [the surgeon] against the 

claim of a deviation from the standard of care. While [this 

patient] or any other patient may consent to risks, she 

does not consent to negligence. Knowledge by the trier of 

fact of informed consent to risk, where lack of informed 

consent is not an issue, does not help the plaintiff prove 

negligence. Nor does it help the defendant show he was 

not negligent. In such a case, the admission of evidence 

concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude, contrary to 

the law and the evidence, that consent to the surgery was 

tantamount to consent to the injury which resulted from 

that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong. See 

Waller v. Aggarwal, 116 Ohio App.3d 355, 688 N.E.2d 

274, 275-76 (1996).

Wright v. Kaye, 267 Va. 510, 528-29, 593 S.E.2d 307, 317 

(2004). Accordingly, the Virginia Supreme Court held that the 
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trial court erred in failing to grant the motion in limine regarding preoperative discussions concerning the risks of surgery. 

The court reversed the summary judgment in favor of the surgeon and remanded the cause for further proceedings.

In Hayes v. Camel, 283 Conn. 475, 927 A.2d 880 (2007), 

the patient filed a medical malpractice action against a neurosurgeon and his assistant based on alleged negligence in 

the course of performing a surgery. The patient filed numerous motions in limine seeking to preclude the admission of 

documentary or testimonial evidence pertaining to informed 

consent and preclude any discussion or argument pertaining 

to his injuries as a “‘“risk of the procedure.”’” Id. at 480, 

927 A.2d at 885. The trial court denied the motions. At trial, 

the court did not permit the words “informed consent” to be 

used, and it refused to admit the consent forms into evidence. 

On appeal, the plaintiff claimed that the trial court improperly denied his motions in limine to preclude, and overruled 

his objections to, the admission of evidence that included (1) 

the surgeon’s testimony that he informed the plaintiff that 

nerve damage was a risk of the surgery and (2) notes to that 

effect from the preoperative consultation between the plaintiff 

and the surgeon. The sole issue on appeal was whether, in a 

medical malpractice action without a claim of lack of informed 

consent, the trial court properly admitted testimonial and documentary evidence that the defendant surgeon had informed his 

patient of the risks of the medical procedure in question. The 

Connecticut Supreme Court, after citing Wright v. Kaye, supra, 

and Waller v. Aggarwal, 116 Ohio App. 3d 355, 688 N.E.2d 

274 (1996), said:

We conclude that the trial court abused its discretion 

when it admitted evidence of the risks of the [surgery] in 

the form of their disclosure to the plaintiff. The admission of evidence that [the surgeon] had told the plaintiff 

of those risks, namely, his testimony and the office notes 

to that effect, implicates the concerns about jury confusion raised by our sister state courts that have considered 
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the issue of the admissibility of informed consent evidence in medical malpractice cases without informed 

consent claims. See Conn.Code Evid. § 4-3. Put differently, admission of testimony about what the plaintiff 

specifically had been told raised the potential that the 

jury might inappropriately consider a side issue that is not 

part of the case, namely, the adequacy of the consent. . . . 

[I]t was unduly prejudicial to admit such evidence [of the 

risks of a surgical procedure] in the context of whether 

and how they were communicated to the plaintiff. Rather, 

such evidence is properly admitted, without this risk of 

confusion and inappropriate prejudice, in the form of, for 

example, testimony by the defendants or nonparty expert 

witnesses about the risks of the relevant surgical procedures generally.

Hayes v. Camel, 283 Conn. 475, 487-88, 927 A.2d 880, 889-

90 (2007). Accordingly, the Connecticut Supreme Court concluded that the trial court improperly admitted the challenged 

evidence pertaining to whether the risks of the procedure were 

communicated to the plaintiff. However, the court found that 

such error was harmless because

the trial court’s charge to the jury specifically addressed 

the relationship of surgical risk and negligence, and stated 

that “simply because a particular injury is considered to 

be a risk of the procedure does not mean that a physician 

is relieved of the duty of adhering to the appropriate standard of care and does not mean that because the injury 

was a risk of the procedure injury did not result from a 

failure to conform to the standard of care.”

Id. at 491-92, 927 A.2d at 892. The Connecticut Supreme 

Court presumed that the jury followed the instruction, thereby 

mitigating the prejudice and risks of inappropriate inferences 

attendant to the improperly admitted evidence.

We note that the approach among other jurisdictions is to 

find that evidence of informed consent and risk-of-surgery 

discussions is generally irrelevant where a plaintiff alleges 
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only negligence; they then state that even if relevant, the 

evidence is prejudicial. Other jurisdictions have generally 

not adopted a per se rule of exclusion. As noted by the 

Pennsylvania Supreme Court in Brady v. Urbas, 111 A.3d 

1155 (Pa. 2015), sometimes the evidence may be relevant 

to the question of negligence, if, for example, the standard 

of care requires that the doctor discuss certain risks with the 

patient. And in Viera v. Cohen, 283 Conn. 412, 927 A.2d 843 

(2007), the patient’s negligence claim was based in part on the 

doctor’s failure to properly assess her risk factors. On appeal, 

the doctor claimed that the trial court improperly allowed the 

patient’s expert to testify, over the doctor’s relevancy objection, as to the patient’s lack of informed consent when there 

was no informed consent claim in the case. The Connecticut 

Supreme Court found that even though the patient did not 

assert a lack of informed consent claim, the testimony was 

directly relevant to the patient’s claim that the doctor failed 

to recognize that the patient’s delivery presented a risk of 

shoulder dystocia (i.e., when the baby’s shoulders become 

lodged during a vaginal delivery requiring delivery of the 

child within minutes to avoid risk of neurological injury or 

death). The court said that if, as the patient’s experts had testified, the standard of care would have obligated the doctor 

to discuss the risks of vaginal delivery with her, the doctor’s 

failure to do so would provide evidence that he had not in fact 

recognized that those risks were present. The court concluded 

that the trial court did not abuse its discretion in concluding 

that the testimony was relevant. Moreover, the trial court in 

Viera expressly instructed the jury that informed consent was 

not an issue in the case.

[7] We hold, as a matter of first impression, that evidence 

of risk-of-procedure or risk-of-surgery discussions with the 

patient is generally irrelevant and unfairly prejudicial where 

the plaintiff alleges only negligence, and not lack of informed 

consent. However, we specifically decline to adopt a per se 

rule of exclusion. Given our holding, which is in accord with 
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other state courts, we now turn our analysis to the facts of the 

case before us.

The trial court allowed Dr. Schroeder to testify over objection that prior to performing a colonoscopy, it is his practice 

to talk to his patient about complications of the procedure and 

specifically list the risks and complications, including perforation and the potential need for surgery. He testified:

I give the same consent every single time because you’re 

required — there’s basic elements of that requirement that 

you just have to include every time, risks, benefits, alternatives. And even the fact that they don’t have to do the 

exam and there’s other things they can do to get screened 

for colonoscopy [sic].

At that point, Hillyer’s counsel requested a sidebar, during 

which the following discussion was had:

[Hillyer’s counsel]: Your Honor, we object to this 

line of questioning for the reasons stated, 402, 403, 

the motion in limine, and now he’s also going — he’s 

also using the word “consent” and going into that and 

we already have a sustained motion in limine regarding 

informed consent.

[Defense counsel]: Your Honor, I think I’m following 

the motion in limine. We’ve already discussed this. He’s 

not — if the witness was permitted to testify, he would 

say he actually goes for the statistical rate of perforation. 

But following the Court’s order, he’s not going to talk 

about that. But he has to be able to talk about how he 

talks to his patients and gets their permission before they 

undergo a procedure, and he does it every time with all 

of the colonoscopies. This is part of his normal practice. 

And I — they certainly went into it with their expert, 

and I did on cross-examination. It’s a known risk of the 

procedure. So I don’t know how I can’t elicit that from 

my client.

THE COURT: I think the issue that we are addressing has to do with him using the word “consent.” I think 
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when we were discussing this in the motion in limine it 

was going to what the risks are and things of that nature, 

but we need to avoid any implication that she somehow 

consented to all of these risks by going through with 

the procedure. And I think that’s in the rulings that have 

come out in other jurisdictions and other states. So as far 

as the motion in limine, the portion of the actual medical 

records that is the signed consent form is out, and that 

one phrase in the medical ruling it says after I received 

informed consent.

What I would say at this point on the objection is to 

try and steer clear of using the word “consent” when 

he’s talking about going through the risks and things of 

that nature.

. . . .

. . . [W]hat we’re trying to avoid here are some of the 

issues that have come up that we’ve discussed as far as 

there being some insinuation to the jury that she somehow 

assumed the risk of going through this procedure. Getting 

away from the actual issue of the case which is whether 

or not there was excessive force. . . .

[Defense counsel]: After he explains this to the patient 

and they understand it, because he’s not — I don’t want 

them to get the implication that he says all this to them 

and they don’t have a choice, that they have to do this. 

Can he say after I explain this I make sure they understand it?

THE COURT: I don’t think there’s a problem with saying make sure they understand it. But when you get into 

saying they had a choice to do it or not to do it, I think 

we get into the issue that they somehow consented to all 

of the risks.

[Defense counsel]: Maybe the solution to all of this 

is maybe an instruction to the jury that you can say 

the patient — we can formulate one, to say that they 
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consented to the procedure does not mean that they consented to — that the physician would be below the standard of care in performing the procedure.

[Hillyer’s counsel]: It’s the word “consent.” Move to 

strike, and ask the jury to disregard — just instruct them 

to disregard the use of the word “consent” if he’s getting 

really close to the consent form.

After the sidebar, the court struck Dr. Schroeder’s statement, 

“‘I give the same consent every single time,’” and instructed 

the jury to disregard the same.

Direct examination of Dr. Schroeder resumed as follows:

[Defense counsel:] Doctor, since your fellowship and 

through your practice, do you meet with your patients and 

explain to them — regardless of what the procedure is, if 

it’s an endoscopy, colonoscopy, ERCP, do you try to sit 

down with them and have them understand the procedure 

that you’re about to perform?

[Hillyer’s counsel]: Objection. 402, 403 again.

THE COURT: Overruled.

[Hillyer’s counsel]: Motion in limine.

THE COURT: Overruled.

[Dr. Schroeder:] I don’t think that I can proceed with 

an exam unless the person undergoing the procedure or 

those responsible for them truly understand what they’re 

getting involved in.

. . . .

[Defense counsel:] And as it relates to a colonoscopy, 

one of the things that you try to get the patient to understand is that there are potential complications with that 

procedure. Is that fair?

[Hillyer’s counsel]: Objection. 402, 403, motion in 

limine.

THE COURT: Overruled.

[Dr. Schroeder:] I do try to make sure that the patient 

understands those complications.
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[Defense counsel:] Okay. And as it relates to perforations, do you try to get the patient to understand that that 

is a potential complication of the procedure?

[Dr. Schroeder:] Very much so.

[Hillyer’s counsel]: Objection. 402, 403, motion in 

limine, and move to strike.

THE COURT: Overruled.

[Defense counsel:] And is a part of that attempt, talk 

to that patient so that they understand? I think you mentioned earlier to a question that one of the things that 

you do, you mention to the patient the potential that 

a perforation may occur and might require surgery; is 

that fair?

[Hillyer’s counsel]: Objection. 402, 403, motion in 

limine.

THE COURT: Overruled.

At that point, Hillyer’s counsel requested another sidebar, during which the following discussion was had:

[Hillyer’s counsel]: This needs to stop. We’re getting way — we’re just spending this time on all of this 

stuff he tells the patients. Why don’t you get to the 

colonoscopy?

THE COURT: What’s the objection?

[Hillyer’s counsel]: The objection is 402, 403, relevance, motion in limine. We’re getting right to the heart 

of the thing we’ve dealt with all the time about this same 

issue. This is not a case about informed consent. We 

understand that. Let’s move it.

. . . .

THE COURT: This brings up a lot of the arguments 

that were made at our pretrial motions, one of them 

being that I understand the informed consent part of 

it. I understand not getting into some insinuation to 

the jury that she somehow consented to this procedure; 

therefore, you just have to deal with whatever happens. 

The problem that I see at this point is . . . Hillyer’s own 
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testimony that she doesn’t even remember talking to 

the doctor before the procedure at all. So that brings up 

some of this issue as far as what even happened during 

the procedure.

So while I understand we need to get to the heart of 

the matter, the objection is overruled in that he’s just 

explaining generally that he goes through the risks. He’s 

been told not to mention anything with regard to consent. 

And I would expect that Counsel is not going to argue in 

any way that she somehow consented to what happened 

to her. And . . . I would ask for both sides to submit a 

jury instruction so I can see the language that you would 

like the Court to consider with regards to just because 

she went through with this procedure doesn’t mean she 

somehow consented to this happening to her or that it 

somehow negates professional responsibility.

After the sidebar concluded, Dr. Schroeder was allowed to 

testify, over objection, that it is his “custom and practice to 

repeat the same discussion for every colonoscopy with every 

patient every time.” He was also allowed to testify, over objection, “I ask the patient after my discussions with them if they 

still wish to proceed with the examination. And, yes, patients 

have said they didn’t want to do the exam at that point, got 

their clothes on, went home.”

Dr. Schroeder also testified about his discussions with 

Hillyer:

[Defense counsel:] Would you have had a discussion 

consistent with what you’ve already testified to with . . . 

Hillyer about the colonoscopy and the procedure that you 

were about to perform and the potential complications 

and risk are[a]s of the procedure?

[Dr. Schroeder:] Yes.

[Hillyer’s counsel]: Objection. 402, 403, motion in 

limine, move to strike and instruct the jury to disregard.

THE COURT: Objection is overruled. The answer 

will stand.
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[Dr. Schroeder:] At the completion of this physical 

examination I then discussed the risks, benefits, options, 

complications of the examination as well as the sedation.

[Defense counsel:] And would that have included, as 

you discussed earlier as is your custom and habit the 

thousands of times that you have done it, concerning a 

potential for a perforation and the potential need for surgery if that in fact resulted?

[Dr. Schroeder:] Yes.

[Hillyer’s counsel]: Objection. 402, 403, motion in 

limine, move to strike and instruct the jury to disregard.

THE COURT: Objection is overruled. The answer 

will stand.

We first focus on Dr. Schroeder’s testimony as it relates to 

discussions he had with Hillyer specifically. Dr. Schroeder and 

MGI argue:

Evidence that a perforation is a known risk of a colonoscopy and can occur even when a physician is complying with the standard of care is obviously relevant. 

It is, in fact, necessary in order that the jury not find 

[Dr. Schroeder and MGI] negligent solely because of 

the perforation.

Brief for appellees at 19. We agree. However, the problem 

occurs when evidence of the risks comes in the form of their 

disclosure to the plaintiff. See Hayes v. Camel, 283 Conn. 475, 

927 A.2d 880 (2007). When evidence of the risks comes in 

the form of their disclosure to the patient (i.e., that a patient 

was informed of the risks), such evidence goes toward the 

patient’s consent to the procedure, not negligence. In cases 

where consent is not at issue, evidence of what a patient was 

told raises the potential that the jury might inappropriately 

consider consent. To avoid confusion and inappropriate prejudice, evidence of the risks of a procedure is instead properly 

admitted in the form of general testimony by the defendants 

or nonparty expert witnesses. Id. The defendant or nonparty 

expert witnesses can testify about the risks of the relevant 
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surgical procedures generally (e.g., that perforations are a 

risk of colonoscopies), but cannot testify that the patient was 

informed of such risks prior to the procedure. In this manner, 

the jury hears evidence that something is a risk of a procedure, and is less likely to wrongly assume that the doctor was 

negligent just because something bad happened. But the jury 

will also not hear evidence that the patient was informed of 

the risk, and thus will not be likely to inappropriately consider 

consent—that if the patient consented to the procedure, he or 

she somehow consented to any negligence. And in the present 

case, experts on both sides did testify that perforations can 

occur even when a physician is complying with the standard of 

care; such testimony was proper.

However, testimony given by Dr. Schroeder relating to discussions he had with Hillyer is exactly the kind of testimony 

that courts in other jurisdictions have found to be irrelevant 

and unfairly prejudicial, given that Hillyer alleged only negligence, and not lack of informed consent. In the present case, 

the jury had to determine whether Dr. Schroeder used excessive force during Hillyer’s colonoscopy (thereby deviating 

from the standard of care). Evidence of information conveyed 

to Hillyer concerning the risks of the procedure, including perforations, had no bearing on the issue of the standard of care. 

See Wright v. Kaye, 267 Va. 510, 593 S.E.2d 307 (2004). “Put 

simply, what plaintiff was told bears no relationship to what 

defendant should have done.” Warren v. Imperia, 252 Or. App. 

272, 280, 287 P.3d 1128, 1132 (2012). Furthermore,

[e]vidence 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 or 

lead it to decide the case on an improper basis.

Id. at 281, 287 P.3d at 1132-33.

The fact that the trial court did not permit Dr. Schroeder 

to use the word “consent” is of no import in our final 
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determination; nor is the fact that the trial court granted 

Hillyer’s motion in limine with regard to the actual consent 

forms. See Hayes v. Camel, 283 Conn. 475, 927 A.2d 880 

(2007) (concluding trial court abused its discretion in admitting evidence of risks of surgery in form of their disclosure to 

plaintiff despite trial court’s not permitting words “informed 

consent” to be used and refusing to admit consent forms into 

evidence). Nor are we persuaded by the trial court’s reasoning 

that “Hillyer’s own testimony that she doesn’t even remember 

talking to [Dr. Schroeder] before the procedure at all . . . brings 

up some of this issue as far as what even happened during the 

procedure.” Again, what happened before the procedure with 

regard to discussion of risks has no bearing on whether or 

not Dr. Schroeder used excessive force during the procedure. 

Furthermore, Hillyer was not questioned on direct examination about conversations she had with Dr. Schroeder; testimony 

regarding Hillyer’s memory of preprocedure discussions came 

in during cross-examination and referenced her deposition 

testimony, which was not received into evidence or otherwise 

before the jury.

We note that in their brief, Dr. Schroeder and MGI argue 

that Hillyer’s “specific objection” at trial was to the word “consent” and that she now “attempts to expand the objection from 

‘consent’ to the fact that [she] was informed of the risks of 

surgery.” Brief for appellees at 15-16. A complete review of the 

record shows that Hillyer is not expanding her objection. After 

Dr. Schroeder testified that he “give[s] the same consent every 

single time,” Hillyer requested a sidebar and objected based on 

“402, 403, the motion in limine.” After further discussion on 

the matter, she did object to the word “consent.” Throughout 

the remainder of Dr. Schroeder’s testimony regarding discussion of risks, Hillyer repeatedly objected, citing “402, 403,” 

and the motion in limine. Hillyer’s motion in limine, particularly paragraphs 16 and 17, sought to exclude any discussion 

that Hillyer was aware of the risks and complications of the 

colonoscopies and any discussion regarding the practice or 
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routine of explaining risks of procedures to patients. The reasons cited in Hillyer’s motion were “NRE 402 Relevance, 403 

Relevance outweighed”; these were the same objections raised 

by Hillyer at trial. Hillyer has not expanded her objection 

on appeal.

Dr. Schroeder and MGI further argue that given “the context 

of this case,” brief for appellees at 20, the trial judge was correct in admitting testimony that Hillyer was informed of the 

risks. They argue that a “theme pressed by [Hillyer] at trial, 

starting in voir dire, was the mental aspect of her surprise in 

awaking in the hospital after the colonoscopy” and that Hillyer 

“questioned [potential jurors] in a fashion to imply to the 

jury that it was highly unusual for a person not to go home 

immediately following a colonoscopy,” such that Hillyer’s 

knowledge of possible complications should be allowed. Id.

They also cite to exhibits placed into evidence (i.e., medical 

records from Hillyer’s surgeries following her colonoscopy); 

those records included statements that Hillyer was informed of 

the risks of surgery and decided to proceed. Our review of the 

record reveals no “mental aspect of . . . surprise” on Hillyer’s 

part. See brief for appellees at 20. Hillyer’s questioning during 

voir dire was benign and reveals nothing other than counsel’s 

efforts to learn of potential jurors’ experiences with colonoscopies, ferret out possible bias, and acquire a fair jury pool. 

Finally, nothing in the medical records regarding Hillyer’s 

subsequent surgeries with other doctors placed Dr. Schroeder’s 

discussions with Hillyer regarding the colonoscopy in issue. 

See Fiorucci v. Chinn, 288 Va. 444, 764 S.E.2d 85 (2014) 

(finding that trial court did not err in excluding from evidence 

defendant doctor’s risk-of-surgery discussions with patient, 

even though one of expert witnesses referred to discussions 

with his own patient). In sum, nothing in the record before us 

persuades us to deviate from the general rule that evidence of 

risk-of-procedure or risk-of-surgery discussions is irrelevant 

where a plaintiff alleges only negligence, and not lack of 

informed consent.
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We find that under the facts of this case, any discussion 

that Dr. Schroeder informed Hillyer of the risks and complications of colonoscopies was neither relevant nor material 

to the issue of whether Dr. Schroeder used excessive force 

during Hillyer’s colonoscopy, and therefore, the discussions 

were inadmissible. See §§ 27-401 and 27-402. For the same 

reasons, we find that evidence of Dr. Schroeder’s discussions 

with his other patients regarding risks and complications associated with colonoscopies was improperly admitted, because 

such discussions go to the issue of consent, not negligence. 

In particular, Dr. Schroeder’s testimony that some patients, 

after having risk discussions with him, have decided not to 

proceed with the examination could lead a jury to improperly 

conclude that because Hillyer did proceed with the procedure, 

she somehow consented to negligence or waived a claim 

of negligence.

[8,9] Having concluded that admission of such evidence 

was erroneous, we now consider whether its admission 

requires reversal. In a civil case, the admission or exclusion 

of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party. In re Estate of 

Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015). The admission of Dr. Schroeder’s irrelevant and inadmissible testimony 

regarding risk-of-procedure discussions was prejudicial as 

previously discussed; however, under the circumstances of 

this case, such error does not require reversal, because the 

trial court gave a sufficient curative instruction. As we noted 

earlier, in Hayes v. Camel, 283 Conn. 475, 491-92, 927 A.2d 

880, 892 (2007), although the Connecticut Supreme Court 

concluded that it was unduly prejudicial to admit evidence 

of the risks of a surgical procedure in the context of whether 

and how they were communicated to the plaintiff, the court 

nevertheless held that “the trial court’s charge to the jury 

specifically addressed the relationship of surgical risk and 

negligence,” by noting that the mere fact a particular injury is 

a risk of a procedure does not mean it “‘did not result from 
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a failure to conform to the standard of care.’” Similarly here 

in the case before us, the trial court’s instructions to the jury 

specifically addressed the relationship of the risks of the procedure and negligence; they stated:

A healthcare provider has the duty to possess and use 

the care, skill, and knowledge ordinarily possessed and 

used under like circumstances by other healthcare providers engaged in a similar practice in the same or similar 

communities.

The fact that a patient goes through with a procedure 

having been advised of the risks of such procedure does 

not change or alter the duty of the health care provider 

to possess and use the care, skill and knowledge ordinarily possessed and used under like circumstances by other 

healthcare providers engaged in a similar practice in the 

same or similar communities.

(Emphasis supplied.) In Hayes v. Camel, supra, the Connecticut 

Supreme Court presumed the jury followed the instruction, 

thereby mitigating the prejudice and inappropriate inferences 

attendant to the improperly admitted evidence. We conclude 

the same here. See, also, Simon v. Drake, 285 Neb. 784, 829 

N.W.2d 686 (2013) (certain testimony prejudicial and not 

harmless; no curative instruction given); Baker v. RacineSattley Co., 86 Neb. 227, 233, 125 N.W. 587, 590 (1910) 

(finding that court’s instruction to jury to disregard certain 

testimony cured any error in case at bar, but recognizing that 

“in some cases error in the reception of incompetent evidence 

cannot be cured by an instruction to the jury to disregard 

it”). It is presumed a jury followed the instructions given in 

arriving at its verdict, and unless it affirmatively appears to 

the contrary, it cannot be said that such instructions were disregarded. In re Estate of Clinger, supra. There is nothing in 

the record before us to affirmatively show that the jury disregarded the instruction above; further, in the present case, two 

competing experts testified as to whether Dr. Schroeder used 

excessive force (thereby deviating from the standard of care), 
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and it was for the jury to decide which one to believe. Both 

experts testified that perforations were a risk of the procedure; 

each differed in his testimony as to whether the perforation which occurred during Hillyer’s colonoscopy was caused 

by excessive force. Although we conclude that the curative 

instruction in this case sufficiently mitigated the prejudice of 

the improperly admitted evidence, particularly in light of the 

other evidence available to the jury to reach its conclusion, we 

caution that curative instructions may not always overcome 

the prejudice and reversal may be warranted. See Baker v. 

Racine-Sattley Co., supra.

CONCLUSION

For the foregoing reasons, we find that under the circumstances of this case, it was error to allow evidence of Dr. 

Schroeder’s risk discussions with Hillyer and other patients. 

However, any error in admitting that evidence does not constitute reversible error given the trial court’s curative instruction 

to the jury. Accordingly, we affirm.

Affirm