In its unreported opinion filed on December 6, 2016, the Court of Special Appeals of Maryland (“Appellate Court”) affirmed the trial court entering judgment in favor of the Defendant OB at the close of the plaintiff’s side of her medical malpractice case that alleged the lack of informed consent regarding the birth of her second child who experienced shoulder dystocia resulting in a brachial plexus injury during delivery, holding that the plaintiff “failed to meet the baseline requirement of establishing an informed consent claim.”
Maryland Law On Informed Consent
A physician is under a duty to make an adequate disclosure of substantial facts which would be material to the patient’s decision regarding medical treatment. The doctrine of informed consent imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn her of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. The scope of the physician’s duty to inform is measured by the materiality of the information to the decision of the patient. A material risk 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.
The Appellate Court’s Decision
The plaintiff attempted to prove her lack of informed consent claim regarding the birth of her second child by calling the defendant OB to testify during her side of the Maryland birth injury case.
The Appellate Court stated that the plaintiff never offered the defendant OB as an expert witness, never identified the defendant OB as a potential expert in her answers to interrogatories, designation of expert witnesses, or pretrial conference statement, and while her attorney was examining the defendant OB at trial, the circuit court asked if the defendant OB was “testifying as an expert,” and the plaintiff’s attorney responded by saying: “[S]he is a party, Your Honor. And I can try to qualify her as an expert, if that’s what the Court would require, but in this context, the standard is what a reasonable patient would want to know.”
The Appellate Court stated that based upon this exchange, the plaintiff understood that the defendant OB had not been qualified to give expert testimony and therefore the plaintiff failed to meet the baseline requirement of establishing an informed consent claim (before a witness may be asked a question which calls for expert testimony, the witness’ qualifications must be proved and the witness proffered to the court and accepted by it as an expert in the relevant field; in order to determine whether a proposed witness is qualified to testify as an expert, the trial court must examine whether the witness has sufficient knowledge, skill, experience, training, or education pertinent to the subject of the testimony).
Source Harper v. Calvert OB/GYN Associates of Southern Maryland, LLC, No. 1727, September Term, 2015.
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