Failure to Obtain Informed Consent in Medical Malpractice Cases

Medical negligence is not the only basis for a medical malpractice lawsuit in Maryland. Lack of informed consent can also be a basis for these cases involving hospitals, doctors and their patients. The doctrine of “informed consent” in Maryland requires that, prior to performing any type of medical procedure on a patient, a doctor must disclose to the patient a number of things to assist the patient in making an informed choice about whether to undergo the procedure. For example, Maryland case law states it is the duty of the physician to explain the procedure to the patient, warn him of the dangers associated with performing, advise of the probability of success of the procedure and advise of the alternatives to the procedure. The doctor or hosptial may even be required to advise the patient of “other factors,” such as whether there are more experiended physicians who do the procedure in the patient’s georgraphic area. Providing adequate informed consent is a requirement of all doctors and hospitals, and Johns Hopkins Hospital is no exception.

For example, there is the case of Mark Mahler. Mr. Mahler claimed that his doctor at Johns Hopkins Hospital failed to obtain his “informed consent” beucase the doctor did not disclose the major risks of an elective procedure to him, and he subsequently brought suit.
A copy the judicial opinion regarding the case can be found here. Following his surgery, Mr. Mahler claimed that he was not adequately advised of all of the risks of this particular procedure, and would not have undergone the surgery had he known of them. The Court evaluated the sufficiency of both the consent form that Mr. Mahler signed prior to the procedure and the discussion that he had with his doctor. The Court believed that the consent form created a question as to whether adequate consent was actually given to the patient as it contained a list of rather vague, generic complications that follow any procedure. Furthermore, the discussion that took place between Mr. Mahler and his doctor downplayed the risks of the procedure. For example, the doctors’ explanation of what the standard warnings for numbness and failure to achieve desired results meant did not in any way indicate that permanent numbness or unanticipated change in appearance was possible.

As an experienced Baltimore, Maryland medical malpractice lawyer, I have handled many cases involving informed consent. Medical negligence cases do not always involve death and cases are frequently brought involving unanticipated outcomes resulting from routine procedures. To see some of the cases I have handled, click here.

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