In an appellate case decided on June 27, 2012 by the Court of Special Appeals of Maryland (Maryland’s intermediate appellate court), the Court held “…except in cases involving a refusal or delay in undergoing recommended treatment or the pursuit of unconventional medical treatment, a healthcare provider cannot invoke the affirmative defense of assumption of risk in a medical malpractice claim brought by his or her patient where a breach of informed consent has not been alleged.”
What Is “Assumption Of Risk”?
“[T]o establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” The doctrine of assumption of risk arises from “an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward [him] and to take [his] chances from harm from a particular risk.” In other words, assumption of risk means voluntarily “incurring that of an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting.” Whether the plaintiff “voluntarily exposed” himself to a known risk, “there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct.”
Maryland recognizes assumption of risk as an affirmative defense. If the defendant establishes assumption of risk by the plaintiff, it “functions as a complete bar to recovery because it is a previous abandonment of the right to complain if an accident occurs.” In Maryland, assumption of risk may be a defense in a medical malpractice case, but…it is a “rare situation” where assumption of risk is an issue.
In the present case before the Court of Special Appeals of Maryland, the Court stated, “In our view, for a court to hold that a patient assumed the risk of a physician acting negligently in a medical procedure is “tantamount to a finding that the [physician] owed no duty” to the patient…Accordingly, we hold that, except in cases involving a refusal or delay in undergoing recommended treatment or the pursuit of unconventional medical treatment, a healthcare provider cannot invoke the affirmative defense of assumption of risk in a medical malpractice claim brought by his or her patient where a breach of informed consent has not been alleged.”
What Is “Informed Consent”?
A patient alleging an informed consent claim complains that “a healthcare provider breached a duty to obtain effective consent to a treatment or procedure.” 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. The physician’s “duty to disclose” requires that the physician explain to the 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.”
In the case that the Court of Special Appeals of Maryland decided, the medical malpractice claim was based on the alleged negligent performance of an elective colonoscopy that resulted in injury to the patient. The Court stated, “What Dr. Schwartz is arguing, in essence, is that Johnson voluntarily assumed the risk of a non-negligent complication of a colonoscopy. That can be raised only as a defense to a claim of a breach of informed consent, which claim was not brought by Johnson in the instant case. In other words, a patient’s voluntary assumption of a risk normally associated with a particular medical treatment or procedure, after having been properly informed of the same, occurs in virtually every case and does not relieve the physician of compliance with the applicable standard of care. To hold otherwise would mean that Johnson consented to allow Dr. Schwartz to exercise less than ordinary care when Dr. Schwartz conducted the colonoscopy. Accordingly, we hold that the trial court did not err in ruling that the defense of assumption of risk was not available to Dr. Schwartz.”
What Is The Difference Between The Defense Of Assumption Of Risk And A Defense To A Claim Of Breach Of Informed Consent?
The Court answered this question as follows: “Dr. Schwartz’s argument that Johnson voluntarily assumed the risk of a bowel perforation confuses the defense of assumption of risk with a defense to a claim of a breach of informed consent. A bowel perforation, according to Dr. Schwartz, is a normal and usual complication associated with the performance of a colonoscopy, and thus can occur without any negligence on the part of the physician. The defense of assumption of risk, however, assumes that the defendant, i.e., a doctor in a malpractice case, was negligent…Dr. Schwartz did not concede in the trial court, nor does he in this appeal, that he was negligent in the performance of the colonoscopy on Johnson. What Dr. Schwartz is arguing, in essence, is that Johnson voluntarily assumed the risk of a non-negligent complication of a colonoscopy. That can be raised only as a defense to a claim of a breach of informed consent, which claim was not brought by Johnson in the instant case.”
What Is “Medical Malpractice”?
In Maryland, medical malpractice occurs when a “healthcare provider breached a duty to exercise ordinary medical care and skill based upon the standard of care in the profession.”
Claims of informed consent and medical malpractice are “separate, disparate theories of liability” and therefore in the case decided by the Court of Special Appeals of Maryland, the Court held that “evidence of appellants providing informed consent to Johnson is irrelevant to Johnson’s medical malpractice claim.”
Click here to read the entire written opinion issued in this case by the Court of Special Appeals of Maryland.
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