Medical malpractice claims often include a separate claim for lack of informed consent, which is a claim separate (and different) from a medical malpractice claim. A medical malpractice claim involves the allegation that a health care provider breached the applicable standard of care required under the circumstances and that as a result of the breach of the standard of care, the person suffered injuries or other harms. A claim for lack of informed consent involves the claim that a health care provider breached the duty to obtain the informed consent to treatment.
In Maryland, medical malpractice is predicated upon the failure to exercise requisite medical skill for which general rules of negligence usually apply in determining liability. In a breach of informed consent count, a patient complains that a health care provider breached a duty to obtain effective consent to a treatment or procedure by failing to divulge information that would be material to his/her decision about whether to submit to, or to continue with, that treatment or procedure; under the informed consent doctrine, a health care provider has a duty to provide a patient with all information material to the patient’s assessment about whether to submit to a particular therapy or procedure.
The doctrine of informed consent follows logically from the universally recognized rule that a physician, treating a mentally competent adult under nonemergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his/her patient. The primary purpose of obtaining a patient’s informed consent is to enable the patient to make an informed choice about a particular therapy or procedure so that health care providers do not substitute their own judgment for that of the patient’s (personal autonomy and personal choice are the primary foundations of the informed consent doctrine).
The duty to provide information extends not only to a patient’s ailment or condition, but also to 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: 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.
However, a health care provider is not burdened with the duty of divulging all risks, but only those which are material to the intelligent decision of a reasonably prudent patient. Maryland has adopted a general or lay standard of reasonableness under which 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 (“material information” is defined in Maryland as information which a physician knows or ought to know 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 Maryland appellate courts have stated that the gravamen of an informed consent claim is a health care provider’s duty to communicate information to enable a patient to make an intelligent and informed choice, after full and frank disclosure of material risk information and the benefit of data regarding a proposed course of medical treatment.
If you believe that a Maryland health care provider failed to obtain informed consent regarding medical treatment or a medical procedure, you should promptly consult with a Maryland medical malpractice attorney (or a medical malpractice attorney in your U.S. state) who may investigate your informed consent claim for you and represent you in such a claim, if appropriate.
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