In Maryland medical malpractice cases, there generally are two types of claims that can be asserted. The first is a garden-variety medical malpractice claim that alleges that a physician provided negligent care (care that fell below the standard of care), which caused injuries and damages to the patient. The second is called lack of “informed consent” claim, through which a patient alleges that the physician failed to properly, appropriately and/or fully explain the treatment to the patient and to warn of any material risks or dangers of the treatment so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment.
At trials in which only medical malpractice claims are at issue, attorneys who represent the doctor often try to introduce evidence that the doctor had conversations with the patient about the potential risks and complications of the treatment and that the patient agreed to move forward anyway. In other words, the medical malpractice defense attorneys try to show that the doctor complied with his obligation under the informed consent doctrine even where there has been no allegation that that doctrine was breached. The purpose of this strategy is to try to convince the jury: (a) that the medical malpractice victim assumed the risk of what happened; and (b) that the cause of what happened could not have been negligence or medical malpractice because the doctor warned the patient that the issue could occur.
Recognizing the flaws in that logic, the Maryland Court of Special Appeals held in the 2012 case of Schwartz v. Johnson that evidence that a physician warned the patient of the potential risks and complications of treatment is inadmissible in a pure medical malpractice lawsuit where no informed consent claim has been made. In coming to that decision, the Court of Special appeals held that such evidence is “irrelevant” to the patient’s medical malpractice claim and also “highly prejudicial” to the patient’s case.