New Maryland Med Mal Opinion | Informed Consent and Apparent Agency

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

Apparent Agency and Informed Consent Law in Maryland

New Opinion on Apparent Agency and Informed Consent Law in Maryland

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 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.

Informed Consent Law in Maryland

Under Maryland law, the doctrine of informed consent flows from the long-established rule that a doctor “cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.”  In order for the patient’s consent to be effective and informed,  the patient must receive from the physician a fair and reasonable explanation of the contemplated treatment or procedure.  In other words, the doctor has to spell out for the patient the procedure or therapy to the patient and to warn her of any material risks or dangers inherent in or collateral to the therapy.  This gives the patient the ability to make an intelligent and informed choice about whether or not to undergo the suggested medical care.

The Maryland Court of Special Appeals  has delineated the elements of the informed consent cause of action:

For a complainant to establish a prima facie case of failure to obtain informed consent, the complainant must illustrate (1) an existence of a material risk, which the physician must explain to the patient; (2) the failure of the physician to inform the patient of the material risk; (3) the physician knew or ought to have known of the material risk; and (4) a causal connection between the lack of informed consent and the harm.

Do you need an expert to bring an informed consent claim in Maryland?  Yes and no.  An informed consent claim is ultimately a two-step process: (1) whether the material risks to a particular treatment or therapy were disclosed, and (2) whether a reasonable patient would have withheld consent upon being informed of the material risks of the treatment or therapy.

Certainly, the latter component does not require an expert.  You don’t need an expert to tell a jury what a reasonable patient should think.  We are all patients ourselves so we are all experts on this issue.  But whether a risk is material is often a question for expert testimony.  Often, you can also get this very same testimony from the defense experts or the defendant.

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 break down every element of these holdings and still hold down my full-time job!

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