When most people think of a medical malpractice case, they think about the kind of case in which the plaintiff (the party bringing the case) claims that a doctor of hosptial has acted below the standard of care and caused significnat injury in a patient. Another type of medcial malpractice case, however, inolves what is called “informed consent.” In the seminal case of Sard v. Hardy, the Maryland Court of Appeals held that the doctrine of informed consent follows logically from the universally recognized rule that a physician treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. The fountainhead of the doctrine of informed consent is the patient’s right to exercise control of his own body. In order for the patient’s consent to be effective and “informed,” it must have been one that is given after the patient received a fair and reasonable explanation of the contemplated treatment or procedure.
In determining the proper test for measuring the scope of a physician’s duty to disclose risk information, Maryland courts are clear. The appropriate test is not what the physician, in the exercise of his medical judgment thinks a patient should know before acquiescing in a proposed course of treatment, but what the particular patient needs in order to make an intelligent decision. That need is whatever “is material to the patient’s decision. A material risk, in turn, is one 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 submit to a particular medical treatment or procedure. In short, whether a physician has fulfilled his duty to disclose, is to be determined by reference to a general standard of reasonable conduct and is not measured by a professional standard of care. Importantly, the law does not allow a physician to substitute his judgment for that of the patient.
From the very beginning, the Maryland Court of Appelas has been clear that there is no bright-line test, or all-inclusive list of items that must be disclosed by a physician in order to procure informed consent. Nevertheless, in Sard, the Court identified five categories of information that generally must be communicated to the patient. (1) the nature of the risks inherent in a particular treatment; (2) the probabilities of therapeutic success; (3) the frequency of the occurrence of particular risks; (4) the nature of available alternatives to treatment; and (5) whether or not disclosure would be detrimental to a patient.
In 2006, the Court of Appeals decided the case of Goldberg v. Boone, its most recent case to address the informed consent doctrine. In keeping with the lack of a bright line test for patient disclosures, this Court held that in addition to the above-referenced five categories, certain “other considerations” may also need to be discussed and resolved on a case-by-case basis, based on the materiality of that information to a patient’s decision. In Goldberg, the issue was whether a physician was obligated to inform his patient that he had performed only one revisionary mastoidectomy over the past three years; and that therefore, there were other more experienced surgeons in the region that could perform the procedure. The Court of Appeals rightly concluded that this information was a valid “other consideration” that would be important to a patient making a decision about whether to go forward with a procedure. The Court further stated that what those ‘other considerations’ may be is determined by what information would be material to a reasonable person in the position of the patient having to decide whether to submit to the medical treatment at issue.
It should be noted that, in Goldberg, the disclosure of the surgeon’s experience to the patient was the sole basis of the informed consent claim. In reaching its holding, it can fairly be interpreted this Court believed that an informed consent case could be made out by the failure to disclose this information, alone, without regard for whether this information fit neatly within the five traditional Sard categories of information addressing the material risks, benefits and alternatives of/to the procedure. The significance of the foregoing is clear – the failure to disclose information that falls within the “other considerations” category will, alone, provide the basis for a prima facie informed consent case.
I have successfully handled a number of informed consent cases in Maryland, some resulting in mult-million dollar verdicts and other involving million dollar settlements. Some have been pure informed consent cases, where there was no allegation of negligence. Others have involved both negligence and infofmed consent claims. Informed consent claims can be a very valuable tool in the plaintiffs’ attorneys’ arsenal, as it is one thing to act below the standard of care, but worse if you have not told the patient things that they should have been told that would have resulted in their not having the (neglignetly performed) procedure performed in the first place.