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New Maryland Federal Court Malpractice Opinion on Informed Consent and Apparent Agency

U.S. District of Judge Richard D. Bennett issued an opinion Monday in an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.

The first question you might have is how did this malpractice case end up in federal court as opposed to Baltimore City Circuit Court where the claim was filed? Good question, my dear reader. Only a crazy plaintiffs’ med mal lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.

So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd – in fact, crazy – to me that a defendant who commits a tort in Maryland could avail themselves to removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction. It is a silly law but it is the law.

Anyway, I don’t know much about the underlying facts. But the case sounds weak to me. The plaintiff claims that he would not have undergone back surgery to repair a disc at L4-L5 he suffered moving a dryer for a customer while working at Lowe’s Home Improvement had he known that that he might get an infection as a result of the surgery.

St. Agnes sought summary judgment arguing that (1) they were not responsible for making sure their doctors adequately informed their patients of the risk and because there was no actual or apparent agency.

The court dismissed the informed consent argument because Maryland law is pretty clear that the duty to obtain informed consent is the doctor’s job. There is no duty to the patient from the hospital unless they “specifically assumed the duty.” I’m not sure why this would be the law. But apparently it is.

Plaintiff also argued that the doctor was an agent of the hospital. But there was no actual agency – he was a doctor with privileges – and plaintiff stated that he believed that doctors were self-employed.

The case has a good overview of Maryland law on informed consent and apparent agency. You can read the opinion in Robertson v. Iuliano here.

Note: As one reader pointed out, there was also a claim against the incorporated medical practice itself. I know and that part of the opinion was also interesting — and a little disconcerting. But I can’t breakdown every element of these holdings and still hold down my full time job!

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  • Mark Morrision

    Great post but you left out the dismissal of the practice itself. That makes no sense to me.