Although ordinary medical negligence and failure to obtain informed consent both are rooted in negligence, they are different legal theories. Ordinary medical negligence claims are predicated upon a physician’s breach of the duty to use that degree of care and skill which is expected of a reasonably competent practitioner acting in the same or similar circumstances. Informed consent claims rest on a physician’s duty to provide sufficient information to enable the patient to decide for himself whether or not to submit to the particular therapy.
Informed Consent In Maryland
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 him 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. This duty to disclose is said to require a physician to reveal to his patient 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 associated with such treatment.
Maryland has adopted a patient-focused version of informed consent, in which the appropriate test for a physician’s duty of care 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; rather, the focus is on what data the patient requires in order to make an intelligent decision. Consequently, the scope of the physician’s duty to inform is to be measured by the materiality of the information to the decision of the patient as determined by reference to a general standard of reasonable conduct rather than a professional standard of care. Information is material when a physician knows or ought to know it 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 doctrine of informed consent embraces not only procedures and surgeries but also treatment plans. However, it would make little sense to incorporate into the duty to disclose a requirement that physicians inform patients of alternative treatment options they will not perform or pursue because, in their medical judgment, they are not indicated. A material alternative treatment option is one the 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. When in the physician’s medical judgment, an alternative treatment is not indicated for the patient, and therefore the physician will not, and should not, perform it, the physician neither knows nor ought to know that the treatment would be significant to a reasonable person in the patient’s position in deciding whether to consent to the treatment or treatments the physician is offering. Just as determining the risks a particular treatment carries is a matter of professional judgment, assessing the treatments that are medically indicated for a patient is a matter of professional judgment.
All that is encompassed in the duty to disclose — including informing the patient of alternative treatment options — does not apply when the physician has not offered any treatment option. Failure to offer treatment options the standard of care requires is to be remedied in an ordinary medical negligence action, not an informed consent action.
If you or a loved one may have been injured (or worse) as a result of failure to obtain informed consent in Maryland, you should promptly find the best Maryland medical malpractice lawyer for you, who may investigate your lack of informed consent claim for you and represent you or your loved one in a Maryland failure to obtain informed consent case, if appropriate.
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