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Shannon et al. v. Fusco et al.

August 5, 2020

Plaintiff, a patient, filed suit alleging that the Defendants, one of whom was a doctor, failed to obtain informed consent for the administration of radiation therapy and a drug, Amifostine, which protects against the harmful effects of chemotherapy.  Plaintiff alleged that the doctor owed him “a clear and adequate explanation of the nature, benefits and risks of, and alternatives to the administration of the drug, Amifostine and the administration of radiation in order to enable him to make an intelligent decision as to whether to proceed.”  Plaintiff designated as an expert a pharmacist in order to establish that the doctor breached the duty owed to Plaintiff to obtain informed consent.  
The Defendant argued that Plaintiff failed to produce expert testimony to establish that a breach of duty to obtain informed consent had, in fact, occurred. Specifically, Defendant alleged that the pharmacist was not qualified to offer an opinion on the standard of care a physician must exercise in obtaining the informed consent of a patient because the individual was a pharmacist and had never obtained a patient’s informed consent. 
The Court of Appeals concluded that while the pharmacist may have been qualified to testify about the material risks of the administration of Amifostine, the pharmacist’s testimony failed to address the material risks of the administration of Amifostine and, therefore, the pharmacist was properly excluded from testifying.  The Court determined that where the pharmacist’s testimony failed to discern the severity of the risk and the likelihood with which the risk will occur, which were material and therefore required disclosure, the pharmacist was properly excluded.