In an unreported case from the Court of Special Appeals of Maryland (“Appellate Court”) filed on June 22, 2015, one of the issues the Appellate Court had to decide was whether the trial court abused its discretion by admitting evidence of informed consent in a medical malpractice case where there was no separate cause of action pled for informed consent.
Claims for medical malpractice and breach of informed consent are separate theories of liability that must be pled separately, although both sound in negligence. An action for medical malpractice alleges that a medical professional failed to use that degree of care and skill which is expected of a reasonably competent practitioner acting in the same or similar circumstances, whereas an informed consent claim alleges that the healthcare provider failed to explain the procedure to the patient and 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 Underlying Facts
On February 12, 2010, the decedent arrived at the emergency room of the defendant Maryland hospital, suffering from painful and infected decubitus ulcers on her lower buttocks that were a complication of multiple sclerosis. The decedent also suffered from osteomyelitis, loss of bladder control, and chronic obstructive pulmonary disorder.
The decedent was admitted to the defendant hospital and remained hospitalized for approximately two and a half weeks. The initial treatment involved the administration of antibiotics and narcotic painkillers, but the decedent’s condition deteriorated nonetheless. On the afternoon of February 26, 2010, the defendant hospital informed her family that the prognosis was poor and that she was a candidate for hospice care. Later that day, the decedent’s doctors initiated hospice care by discontinuing her antibiotics and administering increased doses of painkillers (the family denied that they consented to the change to hospice care). The decedent died on March 1, 2010.
The decedent’s family filed a wrongful death and survival action against the defendant hospital in September 2011, alleging that the hospital breached the applicable standard of care in the administration of pain medications to the decedent (i.e., the rapid upward increase of pain medications administered to the decedent was in violation of the standard of care and caused her death).
On August 7, 2013, the Maryland medical malpractice jury returned a verdict in favor of the three wrongful death beneficiaries and awarded each $300,000 in noneconomic damages, $50,000 in noneconomic damages to the decedent’s estate, and $8,238.05 in economic damages. The jury’s verdict for noneconomic damages was subsequently reduced pursuant to Maryland’s cap on noneconomic damages in medical malpractice cases. The defendant hospital subsequently appealed on various issues, one of which was whether it was proper for the trial court to have allowed the plaintiffs to present testimony regarding informed consent when an informed consent claim was never pled.
The Appellate Court noted that evidence of informed consent is usually not relevant in a medical malpractice action but in this case, the testimony and argument regarding the lack of consent to hospice care was relevant to the claim of medical malpractice: in order to prevail on their medical malpractice claim, the plaintiffs were required to prove that the defendant’s conduct breached the appropriate standard of care, and the circumstances of the doctors’ conduct are relevant to both establishing the standard of care and evaluating whether the standard has been met.
The key issue was whether the dose of narcotic painkillers administered to the decedent between February 26 and March 1, 2010 was excessive under the circumstances and outside of the standard of care, and whether the dose was excessive requires consideration of the circumstances of the case, including the goals of treatment (the administration of a large dose of narcotic medication to a recovering patient may be negligent while administering an identical does to a hospice patient may be within the standard of care).
Therefore, the Appellate Court held that the treatment goal was critically important and relevant to the jury’s determination of the applicable standard of care in this case — the evidence presented by the plaintiffs to establish that the goal of the decedent’s care had, to their knowledge, never changed to hospice care was highly relevant to their claim that the hospital breached the standard of care by administering doses of medication that were inappropriate for a patient who was not in hospice care; the challenged evidence was not offered to support an unpled informed consent claim but rather it was offered to assist the jury in making its finding as to the applicable standard of care and to establish a prima facie case of medical negligence.
The Appellate Court stated that nothing in its prior cases would prohibit evidence of a patient’s lack of consent to treatment in a medical malpractice case when that lack of consent is relevant to prove an element of the medical malpractice claim.
Source Upper Chesapeake Health Center, Inc. v. Frank Gargiulo, et al., No. 2157, September Term 2013.
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