This page will look at medical malpractice lawsuits based on the theory of lack of informed consent by the doctor or healthcare provider. In non-emergency situations, doctors are required to obtain a patient’s informed consent before rendering any type of medical treatment or performing any sort of procedure. If they fail to obtain informed consent, the doctor can be held liable for medical malpractice.
Lack of Informed Consent Claims
In Maryland, the law requires doctors and healthcare providers to fully explain any proposed treatment or medical procedure to the patient before moving forward. This includes a duty to explain both the benefits of the procedure or treatment, and warning the patient of any material risks or dangers inherent in the therapy or procedure. The explanation from the doctor must enable the patient to reasonably understand the risks and benefits and make an intelligent and informed choice about whether or not to undergo such treatment.
In other words, Maryland law imposes a duty to explain and warn patients. This duty applies to all non-emergency healthcare settings and to all licensed healthcare providers. The doctrine of informed consent (or lack of informed consent) was first recognized in Maryland in the landmark case of Sard v. Hardy, 34 Md. App. 217 (1976). The concept of informed consent is intertwined with the concept of medical negligence, but the Maryland courts have consistently noted that lack of informed consent is a separate and distinct legal claim from medical negligence (or medical malpractice).
When Is Informed Consent Required
Informed consent is generally required from a patient before any type of invasive medical procedure that has potential risks and complications. Examples of medical procedures that would require informed consent include surgery, invasive medical tests (e.g. a biopsy), vaccinations, anesthesia.
Informed consent is also required for any other type of medical treatment such as prescribing medications, or other less invasive treatments. However, lack of informed consent usually only becomes a legal claim in cases involving invasive procedures. Informed consent is not required in emergency medical situations when there is no time to explain things to a patient.
What Does the Doctor Need to Disclose for Informed Consent
Under Maryland informed consent law, doctors are only obligated to disclose or warn the patient of “material” risks involved in the treatment or procedure. What constitutes a “material” risk? There is no easy or clear cut definition of what makes a risk material versus non-material. The materiality of a risk is usually evaluated based on whether a normal, reasonable patient in the same position would have considered a risk to be material. Sometimes, courts will also look at policies of other doctors and hospitals to judge whether a risk is material.
To prevail on a claim for lack of informed consent in Maryland, a plaintiff must establish causation. Causation requires the plaintiff to show that they would not have agreed to the medical procedure or treatment if the doctor had fully explained it and disclosed all of the risks. This type of causation can often be difficult to evaluate because it involves second guessing.
Maryland follows the objective patient standard for determining the issue of causation in informed consent cases. The objective test looks at whether a reasonable, normal person in the same position of the plaintiff would have agreed to the procedure or treatment if the risks had been fully disclosed.
Informed Consent Forms
Most healthcare providers these days require patients to sign “informed consent forms” or “medical waiver forms” before undergoing an invasive procedure or treatment. These forms basically have the patient agree that the doctor or healthcare professional fully explained the risks and that they understood them. The obvious goal of these forms is to prevent the patient from later coming back and claiming lack of informed consent.
The obvious question is do these forms actually work? If a patient signs a medical waiver or informed consent form, will that legally block them from bringing a claim for lack of informed consent?
Informed consent waivers do NOT prevent patients from suing for medical malpractice if the doctor is negligent in performing the medical procedure. No release form can ever bar an injured patient from suing for medical negligence. In some cases, informed consent forms will make is more difficult and may even prevent a patient from bringing a claim for lack of informed consent. The law does not allow doctors to make themselves immune from negligence liability through waivers.
Lack of Informed Consent Settlements & Verdicts
Below are settlements and verdicts in Maryland involving claims for lack of informed consent.
$33,915,000 Verdict (Maryland 2023): A woman was 23-weeks pregnant and came to the hospital with complaints of abdominal cramping. The defendant diagnosed her with placental abruption and performed an emergency c-section delivery. The baby suffered severe brain damage from being born prematurely. The plaintiffs included a count of lack of informed consent. According to the plaintiff, delivery was not indicated and was performed prematurely due to a misdiagnosis by the defendant physician. It is not clear how much of this verdict was attributable to the informed consent claim versus the medical malpractice claim.
$2,045,214 Verdict (Maryland 2019): The plaintiff reportedly suffered a dural tear while undergoing a bilateral laminectomy such that postoperatively she experienced right lower limb numbness, paresthesia in the heel and the inability to bear weight and was transferred to a rehabilitative facility where she had urinary retention and further loss of sensation in the right lower limb. The plaintiff contended the defendants breached the standard of care and failed to obtain her informed consent for the surgeries by not explaining the full range of material risks.
$1,272,000 Verdict (Maryland 2017): The plaintiff, a 66-year-old man, reportedly suffered a stroke, underwent an unnecessary angiogram and delayed treatment of his discitis and osteomyelitis conditions and infection while under the care of defendant. The lawsuit included claims for medical negligence and lack of informed consent for failing to adequately warn the plaintiff of material risks.
$958,476 Verdict (Maryland 2015): The plaintiff had a feeding tube inserted because she had severe multiple sclerosis. The feeding tube caused major complications that led to more serious health problems. The lawsuit alleged negligence and lack of informed consent for failing to warn about the risks of the feeding tube.
Contact Us About Lack of Informed Consent Lawsuits
If you think you have a lawsuit against a doctor or healthcare provider for lack of informed consent, call our medical malpractice lawyers today at 800-553-8082 on contact us online.