Posted On: January 17, 2013 by Andrew G. Slutkin

Informed Consent in Maryland Medical Malpractice Cases

In Maryland, the doctrine of informed consent requires a physician, before a patient undergoes a non-emergency medical procedure, to explain the proposed medical procedure to the patient including warning the patient of the benefits, risks and alternatives. The District Court for the District of Maryland recently had the occasion to review this law in the case of Robertson v. Iuliano, et al. A copy of the Memorandum Opinion can be found here.

In that case, Robertson underwent back surgery at St. Agnes Hospital in 2006 following an accident. After the surgery, Robertson developed an infection and two additional surgeries were required. The surgery was performed by Luliano, a doctor employed by Nuerosurgery Services, LLC. Robertson signed informed consent forms for the second and third surgery, but not for the initial surgery. Robertson subsequently filed suit against Luliano, Neurosurgery Services and St. Agnes claiming that he would not have undergone the surgery if he had known of the risk of infection and seeking damages from, among other things, loss of income and medical bills.

In the court's opinion, the court determined whether to grant Motions for Summary Judgment filed by Neurosurgery Services and St. Agnes. In deciding summary judgment was warranted, the court took note of the fact that Robertson testified that he “did not know, did not care and did not ask” who employed Luliano at the time of the initial surgery. In Maryland, courts have declined to extend the duty to obtain informed consent from the patient to hospitals unless they “specifically assumed the duty” or the physician was an agent of the hospital. Here, the court found neither as Neurosurgery Services and St. Agnes never specifically assumed the duty and Luliano was not acting as their agent.

I have handled a number of informed consent cases. These cases can be very complicated and turn on brief conversations between the physician and the patient. These conversations, and the records of these conversations, are important evidence regarding whether the doctor obtained "informed" consent from the patient.

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