Informed Consent Maryland Pattern Jury Instruction

Maryland Civil Pattern Jury Instruction 27: 4 (2010).

  1. Informed Consent, Generally:

Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risk or dangers of the treatment, so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. This is known as the doctrine of informed consent.

informedconsent

In fulfilling the duty to disclose, the physician is required to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortunate outcomes associated with such treatment.

A "material risk" is defined as "a risk which a physician knows or ought to know would be significant to a reasonable person in the patient's position in deciding whether or not to have the particular medical treatment or procedure."

The physician's duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a "material risk" is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk. Whether the patient would have consented to the procedure, if informed of the risk, is a relevant factor to be considered, but is not conclusive.

The physician is not required to divulge all risks, but only those which are material to the intelligent decision of a reasonably prudent patient.

  1. Informed Consent (Limitations on Duty to Disclose):

The physician has a qualified privilege to withhold information on therapeutic grounds, as in those cases where a complete and candid disclosure of possible alternatives and consequences more likely than not might have a detrimental effect on the physical or psychological well-being of the patient, or where the patient is incapable of giving his or her consent by reason of mental disability or infancy, or has specifically requested that he or she not be told.

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