On January 25, 2013, a federal medical malpractice jury in Maryland found in favor of a neurosurgeon who was sued by his former patient for his alleged failure to obtain the patient’s informed consent before performing back surgery. The neurosurgeon claimed that he obtained the informed consent from the patient but that he had lost the informed consent form sometime after the surgery (the neurosurgeon’s dictated notes after the surgery referenced that informed consent from the patient had been obtained before the surgery). The neurosurgeon’s claim was bolstered by the fact that the neurosurgeon was able to produce during trial the two informed consent forms the patient had signed for two subsequent surgeries, which made it appear unlikely that the neurosurgeon would not have obtained informed consent for the first surgery.
The patient had injured his leg while delivering a dryer to a customer of Lowe’s Home Improvement in February 2006. The pain in his leg increased and migrated into his back over the course of the next three months. His primary care physician referred him to the neurosurgeon who met with him on May 30, 2006. During that meeting, the neurosurgeon discussed the treatment options available to the man and recommended surgery. The man chose the surgical option but claimed that the neurosurgeon never discussed with him the risk of infection associated with the surgery.
The surgery was performed on June 22, 2006, after which the man developed an infection. Two subsequent surgeries were performed, after obtaining the man’s informed consent, on July 27, 2006 and on November 21, 2006. The patient claimed in his medical malpractice lawsuit that he would not have consented to the original surgery had he been properly informed regarding the risk of infection. The neurosurgeon claimed that he always discusses the risks and alternative treatment options with his patients before performing surgery. The neurosurgeon claimed that he did so with the plaintiff before the first surgery but he was unable to produce the informed consent form signed by the plaintiff.
The Maryland medical malpractice jury evidently believed that the neurosurgeon had discussed the risks and benefits of the proposed surgery before the first surgery, including the risk of infection, even though the informed consent form was not in evidence. After four days of trial, the Maryland medical malpractice jury returned a defense verdict.
The hospital where the first surgery was performed and the neurosurgeon’s medical practice were both dismissed from the medical malpractice lawsuit before trial as a result of the trial judge determining that the obligation to obtain informed consent from the patient was a nondelegable duty of the physician under Maryland law unless the hospital or the medical practice specifically assumed the duty to obtain informed consent.
Robertson v. Iuliano, M.D., U.S. District Court for the District of Maryland, Case No. 1:10-cv-01319-RDB.
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