Informed Consent in Maryland

Medical Malpractice

 

Informed consent in Maryland medical malpractice cases involves the question of whether the patient had a meaningful opportunity to be an informed participant in the patient's own health care decisions. surgicalmalpracticeUnder the doctrine of informed consent, a physician treating a mentally competent adult under non-emergency circumstances may not provide treatment without the patient's informed consent.

Under Maryland law, it is the doctor's duty to explain the proposed treatment or procedure and risks of the procedure to the patient and to properly warn him of any material risks or dangers inherent in, or collateral to, the therapy, such that the patient is able to make an intelligent and informed choice about whether or not to undergo such treatment. This duty to disclose under Maryland law requires a physician to reveal to his patient (1) the nature of the ailment, (2) the nature of the proposed treatment, (3) the probability of success of the contemplated therapy and its alternatives, and (4) the risk of unfortunate consequences associated with such treatment.

Maryland Law Is Informed Consent from the Patient's Perspective

Unlike some other jurisdictions such as Massachusetts, Maryland views the question of informed consent from a reasonable patient perspective. In other words, the Maryland standard focuses on considering what a patient would need to know in order to understand the decision at hand. So in an informed consent in Maryland, the jury looks to the the choice of treatment, and any associated risks, from the perspective of the reasonable patient. Martinez v. Johns Hopkins Hospital, 212 Md.App. 634, 70 A.3d 397 (2013)

Other jurisdictions focus on what a typical physician would say to a patient receiving a similar therapy or procedure. In this case, medical testimony would be required to establish the scope or the breach of the doctor's duty in a medical malpractice action.

Elements of Informed Consent

In Maryland, we are not required to procure expert medical testimony to establish the scope or the "breach of the doctor's duty," but medical testimony is required to establish (1) nature of the risks inherent in a particular treatment, (2) probabilities of therapeutic success, (3) frequency of the occurrence of particular risks, (4) nature of available alternatives to treatment and (5)whether or not disclosure would be detrimental to a patient. In fact, under Maryland law, this testimony can also be provided by the testimony of the defendant medical doctor.

Material Risks Only

In Maryland, only "material" risks must be disclosed by the doctor to the patient. What constitutes material? There is no bright line rule for what risks are material. Again, it falls back to what the reasonable patient would believe to be material. The battles over materiality may also look to the policies of the doctors or the hospital that gave the procedure.

Most health care providers in Maryland have specific policies that state which health interventions require a signed consent form. For example, surgery, medication, anesthesia, or any invasive procedure usually requires a signed informed consent. But a written informed consent is just the beginning of the informed consent process and should be the culmination of a dialogue between doctor and patient, not the entire dialogue.

Duty to disclose material information to the patient is not restricted because the the proposed treatment or therapy is not surgical or invasive. All possible material risks must be disclosed.

Causation

The last step in the informed consent analysis is causation. Most jurisdictions use an objective test for causation. A minority of jurisdictions, such as Washington, DC, Arizona, and New Hampshire, use a subjective test. The objective test is whether a reasonable prudent person in the patient's position would have had the surgery or therapy had the risk been disclosed by the doctor. The subjective test is whether the particular patient (i.e., the plaintiff) would have consented to the surgery if he had been fully apprised of the risk. procedure after being informed of the risk. Like most jurisdictions, Maryland applies the objective test of causation.

Informed consent cases under Maryland law, like most jurisdictions, are couched as tort actions for negligence as opposed to battery or assault. For a medical malpractice case in Maryland, the rendering of medical services absent informed consent must be presented separately in the complaint as a separate and new count of negligence.

Broad Langage Forms May Not Provide Informed Consent

Some of these surgical or hospital consent forms are so broad and generic that they do little to articulate specific risk to patients beyond "bad things could certainly happen". Many patients remember signing one of these "every risk in the world" forms and assume it is the death knell for their informed consent claim. Often, it is not.

Also, the mere fact that the risk is listed does not mean the patient assumed the risk of the injury for the purposes of a medical malpractice claims.

Hiring a Lawyer in Maryland

If you believe you have a medical malpractice case in Maryland, call Miller & Zois at 800-553-8082. You can also get a free on-line consultation here.

More Information on Informed Consent

Key Maryland Informed Consent Cases

If you are doing legal reseach on informed consent law in Maryland, here are some key cases you will want to focus on in your research:

  • Martinez v. Johns Hopkins Hospital, 212 Md. App. 634, 70 A.3d 397 (2013) (holding that informed consent evidence was prejudicial because it as "improperly used to conflate the negligence issue' because an informed consent allegation had not been properly pled in the Complaint)
  • Fusco v. Shannon, 210 Md. App. 399, 63 A.3d 145, (2013) (informed consent and medical negligence are separate and distinct claims that require proof of different elements)
  • Schwartz v. Johnson, 206 Md. App. 458, 49 A.3d 359 (2012) (trial court properly granted motion in limine and precluding evidence of informed consent)
  • McQuitty v. Spangler,410 Md. 1, 18,976 A.2d 1020 (2009) (court overrules Reed v. Campangnolo - see below -- finding that in an an informed consent lawsuit in Maryland is viable when doctor withholds important information about a proposed course of medical treatment causing the patient to make a decision about medical treatment that he/she would not have made with the correct information.)
  • Dingle v. Belin, 358 Md. 354, 749 A.2d 157 (2000) (finding that "evidence of informed consent...is both irrelevant and unduly prejudicial in medical malpractice claims without claims of lack of informed consent")
  • Landon v. Zorn, 389 Md. 206, 230, 884 A.2d 142, 156 (2005) (upholding Worchester County trial judge's ruling to instruct the jury on a malpractice but not on an informed consent in a failure to diagnose necrotizing facitis [flesh eating bacteria] case)
  • Reed v. Campagnolo, 332 Md. 226, 242, 630 A.2d 1145, 1153 (1993) (court says in answer to certified question from U.S. District Court that the duty to obtain informed consent arises only when a medical treatment or procedure has been proposed by a physician involving an "affirmative violation of the patient's physical integrity.")
  • Zeller v. GBMC, 67 Md. App. 75, 506 A.2d 646 (1986) (holding in a Baltimore malpractice case that a doctor's proviiding medical services care patient's informed consent constitutes separate and new count of negligence that must be specifically pled).
  • Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977) (Maryland high court recognized as a separate negligence-based (as opposed to battery) cause of action of informed consent in a tubal ligation sterilization case in Talbot County -- the court also looked at other jurisdictions in determining the subjective test should be the law in Maryland).