In Wakenight v. Katherine Shaw Bethea Hospital, 2026 IL App (4th) 251048, the Fourth District addressed an evidentiary issue that arises frequently in medical negligence cases involving an adverse surgical outcome: when may the defense introduce evidence that the plaintiff’s injury is a known risk or complication of the procedure?
The court drew a distinction between evidence that a complication can occur despite non-negligent care and evidence that the physician warned the particular patient about that complication before surgery. The former may be relevant to standard of care and causation, but the latter generally is not if the plaintiff has not asserted a lack-of-informed-consent claim.
For defense counsel, Wakenight does not eliminate the ability to present a known-complication theory. Rather, it limits how that theory may be proved.
The Case
Wendy Wakenight sued podiatrist Dr. Brandon Gumbiner and Katherine Shaw Bethea Hospital after two foot surgeries. She alleged that Dr. Gumbiner’s treatment caused nerve damage. By the time of trial, Plaintiff asserted six alleged breaches involving preoperative testing and conservative treatment, protection of the sural nerve during surgery, cast application, and diagnosis of nerve entrapments. Plaintiff did not allege lack of informed consent.
Before trial, Plaintiff moved to bar references to informed consent, known risks, or complications. The trial court barred Defendants from introducing Plaintiff’s informed consent form or arguing that she had waived a negligence claim. It nevertheless permitted evidence of known risks and complications to the extent that the evidence related to standard of care and causation.
At trial, the defense presented both types of evidence. During opening statement, defense counsel referred to Dr. Gumbiner’s preoperative discussion of surgical risks, including nerve damage. Plaintiff was cross-examined about risks Dr. Gumbiner had discussed with her, and Dr. Gumbiner testified about the risks and complications he had explained before the surgeries.
The defense also presented medical evidence that scar formation, swelling, and nerve injury could occur in the absence of negligence. Defense expert Dr. Stephen Barrett opined that Dr. Gumbiner complied with the standard of care and that Plaintiff’s injury resulted from “robust exuberant scar tissue formation” around the sural nerve rather than a failure to protect the nerve during surgery.
The jury returned a defense verdict and, in answering special interrogatories, found that Dr. Gumbiner had not breached the standard of care on any of Plaintiff’s six theories.
The Fourth District’s Analysis
On appeal, Plaintiff argued that testimony concerning what Dr. Gumbiner told her about surgical risks improperly introduced informed-consent concepts into a case based solely on negligent treatment.
The Fourth District agreed that the challenged testimony should not have been admitted.
Because no Illinois authority had addressed the precise issue, the court looked to decisions from other jurisdictions. It found the reasoning in these three cases to be persuasive and consistent with Illinois Rules of Evidence 401 and 403: Waller v. Aggarwal 116 Ohio App. 3d 355, 688 N.E.2d 274 (Ohio Ct. App. 1996), Wright v. Kaye, 267 Va. 510 (Va. 2004), and Hayes v. Camel, 283 Conn. 475 (Conn. 2007),.
The appellate court then separated the existence of a recognized complication from the physician’s disclosure of that complication to the patient.
Evidence that scarring, swelling, and nerve damage were known risks or complications of the procedures was relevant under Rule 401. If those conditions can occur following properly performed surgery, that evidence can bear directly on whether the plaintiff’s injury resulted from negligence.
The fact that Dr. Gumbiner had warned Plaintiff about those complications before surgery did not answer that question. Whether a patient knew that nerve damage or scar formation could occur does not make it more or less likely that the physician later breached the standard of care or caused the injury through negligent treatment.
The court also concluded that the patient-specific warning evidence created a risk of jury confusion under Rule 403. Evidence that a plaintiff was told about a particular complication before agreeing to surgery can suggest that the plaintiff accepted the resulting injury. That is different from deciding whether the injury occurred despite appropriate care.
The court therefore found that testimony concerning Dr. Gumbiner’s disclosure of the risks to Plaintiff was not relevant to the issues the jury needed to decide (Rule 401). The court also concluded that even if the testimony had some value in proving a disputed fact, it risked confusing the jury (Rule 403).
Presenting Evidence of a Known-Complication After Wakenight
The Fourth District did not hold that evidence of recognized complications must be excluded simply because informed consent is not at issue. It expressly stated that Dr. Gumbiner and other medical experts could testify that scarring, swelling, and nerve damage were known risks of the procedures. What should have been excluded was testimony concerning whether Dr. Gumbiner had communicated those risks to Plaintiff before surgery.
That distinction matters when preparing defendant physicians and defense experts for trial. The relevant testimony should address the medicine. If the defense position is that the plaintiff experienced a complication that can occur without negligence, the testimony should explain why that complication can occur despite appropriate care and, where the evidence permits, why it accounts for the injury in the particular case.
Dr. Barrett’s testimony illustrates the point. He did not simply identify scar formation as a known surgical complication. He attributed Plaintiff’s nerve injury to scar tissue formation and explained why, in his opinion, that process was consistent with Dr. Gumbiner having performed the surgery within the standard of care.
Wakenight therefore should not be read to mean that describing an outcome as a “known complication” establishes compliance with the standard of care. The complication must still be supported by the medical evidence and connected to the disputed issues of breach and causation.
The court also rejected the defense argument that Dr. Gumbiner’s preoperative discussion was relevant to his credibility because it showed that he had not developed the complication theory after Plaintiff was injured. Nothing in the record suggested that Plaintiff had accused Dr. Gumbiner of fabricating that explanation or covering up negligence. The court noted that its analysis might be different under other circumstances, leaving that question for another case.
Why the Verdict Was Affirmed
Although the Fourth District found that the patient-specific risk testimony was admitted in error, it affirmed the defense judgment because Plaintiff did not establish that the error substantially prejudiced her or affected the verdict.
That determination was complicated by an incomplete appellate record. Plaintiff provided only portions of the six-day trial proceedings. The missing materials included the hearing on the motions in limine, Plaintiff’s opening and closing arguments, portions of the witness testimony, the jury-instruction conference, and other proceedings relevant to the challenged evidence.
Under Foutch v. O’Bryant, 99 Ill. 2d 389 (1984), doubts created by an incomplete record are resolved against the appellant. Without the full trial record, the Fourth District could not evaluate the effect of the improperly admitted testimony in the context of all the properly admitted evidence concerning known risks and complications. Plaintiff therefore could not meet her burden of showing the prejudice necessary for a new trial.
The court separately rejected Plaintiff’s contention that Defendants had effectively presented an unpled assumption-of-the-risk defense. The available record contained no express argument that Plaintiff’s knowledge of the risks, consent to surgery, or decision to proceed waived her negligence claim. The court would not infer that the jury reached that conclusion.
What Wakenight Changes at Trial
For medical malpractice defense counsel, the practical line after Wakenight is relatively clear. A defendant may still present medical evidence that the complained-of injury is a recognized complication that can occur despite appropriate care. That testimony may come from the defendant physician as well as other qualified medical witnesses.
Where informed consent is not at issue, however, counsel should be cautious about moving from evidence that “this can occur without negligence” to evidence that “the patient was told this could occur.” The first proposition may bear directly on breach and causation. Under Wakenight, the second generally does not.
That distinction allows the defense to present the medical explanation for an adverse outcome without asking the jury to consider whether the patient accepted the risk of that outcome before treatment.