Informed Consent in Maryland Medical Malpractice

Informed consent in Maryland medical malpractice cases involves the question of whether the patient had a meaningful opportunity to be an informed participant in the patient's own health care decisions. Under the doctrine of informed consent, a physician treating a mentally competent adult under non-emergency circumstances may not provide treatment without the patient's informed consent. Under Maryland law, it is the doctor's duty to explain the proposed treatment or procedure and risks of the procedure to the patient and to properly warn him of any material risks or dangers inherent in, or collateral to, the therapy, such that the patient is able to make an intelligent and informed choice about whether or not to undergo such treatment. This duty to disclose under Maryland law requires a physician to reveal to his patient (1) the nature of the ailment, (2) the nature of the proposed treatment, (3) the probability of success of the contemplated therapy and its alternatives, and (4) the risk of unfortunate consequences associated with such treatment.
Unlike some other jurisdictions such as Massachusetts, Maryland views the question of informed consent from a reasonable patient perspective. In other words, the Maryland standard focuses on considering what a patient would need to know in order to understand the decision at hand. Other jurisdictions focus on what a typical physician would say to a patient receiving a similar therapy or procedure. In this case, medical testimony would be required to establish the scope or the breach of the doctor's duty in a medical malpractice action.

In Maryland, medical malpractice lawyers are not required to procure expert medical testimony to establish the scope or the "breach of the doctor's duty," but such testimony is required to establish the (1) nature of the risks inherent in a particular treatment, (2) probabilities of therapeutic success, (3) frequency of the occurrence of particular risks, (4) nature of available alternatives to treatment and (5)whether or not disclosure would be detrimental to a patient. In fact, under Maryland law, this testimony can also be provided by the testimony of the defendant medical doctor.
In Maryland, only "material" risks must be disclosed by the doctor to the patient. What constitutes material? There is no bright line rule for what risks are material. Again, it falls back to what the reasonable patient would believe to be material. Medical malpractice lawyers in Maryland battling over materiality may also look to the policies of the doctors or the hospital that gave the procedure. Most health care providers in Maryland, such as University Hospital, Johns Hopkins Hospital, Franklin Square Hospital and the Baltimore Washington Medical Center (formerly North Arundel Hospital) have specific policies that state which health interventions require a signed consent form. For example, surgery, medication, anesthesia, or any invasive procedure usually require a signed informed consent. But a written informed consent is just the beginning of the informed consent process and should be the culmination of a dialogue between doctor and patient, not the entire dialogue.

The last step in the informed consent analysis is causation. Most jurisdictions use an objective test for causation. A minority of jurisdictions, such as Washington, DC, Arizona, and New Hampshire, use a subjective test. The objective test is whether a reasonable prudent person in the patient's position would have had the surgery or therapy had the risk been disclosed by the doctor. The subjective test is whether the particular patient (i.e., the plaintiff) would have consented to the surgery if he had been fully apprised of the risk. procedure after being informed of the risk. Like most jurisdictions, Maryland applies the objective test of causation.

Informed consent cases under Maryland law, like most jurisdictions, are couched as tort actions for negligence as opposed to battery or assault. For a medical malpractice case in Maryland, the rendering of medical services absent informed consent must be presented separately in the complaint as a separate and new count of negligence.

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