December 13, 2012

In a federal medical malpractice case pending in Maryland, a federal judge has determined that only the patient’s physician, and not the physician’s employer and not the hospital where the treatment was received, is responsible for obtaining the informed consent from the patient before beginning medical treatment. As a result of the judge’s decision, the hospital and the physician’s employer were dismissed from the medical malpractice lawsuit.

The medical malpractice plaintiff was a deliveryman who injured his leg while delivering a dryer to a customer during February, 2006. When the pain spread to his back and worsened over the course of months, he sought treatment from a neurosurgeon in May, 2006. The neurosurgeon discussed with the patient the treatment options available to him and recommended back surgery. The neurosurgeon performed the back surgery on June 22, 2006.

The medical malpractice case alleged that the neurosurgeon failed to properly advise the patient regarding the risk of infection associated with the surgery and that had he been so advised, he would have elected to not undergo the surgery. As a result of acquiring an infection following the surgery, the patient had to undergo additional surgeries on July 27, 2006 and on November 21, 2006 and allegedly incurred substantial lost wages as a result.

The deliveryman filed a medical malpractice case against the neurosurgeon, the hospital where the surgery took place, and the neurosurgeon’s employer. The hospital and the employer both filed motions to be removed from the lawsuit, claiming that the duty to obtain the informed consent from the patient is solely the duty of the treating physician.

In the December 10, 2012 written Memorandum Opinion filed in the medical malpractice case, the federal judge stated:

Under Maryland law, “the doctrine of informed consent imposes on a physician, before he subject his patient to medical treatment, the duty to explain the procedure . . . and to warn of any material risks or dangers inherent in or collateral to the therapy.” …. This duty is exclusively imposed on the physician because “unlike the physician, the patient is untrained in medical science, and therefore depends completely on the trust and skill of his physician for the information on which he makes his decision.” To fulfill this duty, a physician must disclose “the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences.” 

Where a plaintiff alleges lack of informed consent it is not the “level of skill exercised in the performance of the procedure [which is at issue, but] the adequacy of the explanation given by the physician in obtaining” consent. As in Maryland, other jurisdictions have held that the “physician is uniquely qualified through education and training, and as a result of his or her relationship to the patient, to determine the information that the particular patient should have in order to give an informed consent.” Accordingly, courts have declined to extend the duty to obtain informed consent from the patient to hospitals unless they “specifically assumed the duty” or the physician was an agent of the hospital. “[C]ourts have uniformly held that the duty to obtain a patient’s informed consent rests solely with the patient’s physician, rather than with a hospital or its nurses (unless, because of special circumstances, the physician is an agent for the hospital).”) 

Even in cases where hospitals have a policy of requiring consent forms to be signed, courts have refused to impose the duty to obtain informed consent on hospitals and its personnel unless that duty was specifically assumed …. It follows that the duty to obtain informed consent is a nondelegable duty of the physician alone …. Because [the hospital] does not have an independent duty to obtain informed consent and did not specifically assume this duty, it is not liable ….

No Maryland court has apparently ever addressed the precise issue of whether the duty to obtain informed consent may be imposed on the physician’s employer …. While Neurosurgery Services was [the neurosurgeon’s] employer, [the neurosurgeon] had the exclusive control over the manner in which he performed his duty to obtain informed consent. Additionally, he was the only one with the skill and training as well as the knowledge of [the patient’s ] condition and records to seek his consent. Therefore, [the neurosurgeon] was not acting as a servant of [his employer] when seeking [the patient’s] informed consent. Accordingly, Defendant [employer] cannot be vicariously liable for [the neurosurgeon’s] alleged failure to obtain informed consent.

Source  Rodney Anthony Robertson v. Brian A. Iuliano, M.D., et al., U.S. District Court for the District of Maryland, Civil Action No. RDB-10-1319.

If your doctor failed to obtain your informed consent for medical treatment or you suffered injuries or losses as a result of negligent medical care in Maryland or in another U.S. state, you should promptly seek the advice of a Maryland medical malpractice attorney or a medical malpractice attorney in your state regarding your right to seek compensation for the harms you suffered.

Click here to visit our website or telephone us toll-free at 800-295-3959 to be connected with medical malpractice lawyers in Maryland or in your state who may be willing to investigate your possible lack of informed consent claim or medical malpractice claim for you and represent you with your claim, if appropriate.

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