Informed Consent in Maryland Medical Malpractice

Informed consent in Maryland medical malpractice cases hinges on whether the patient had a meaningful opportunity to be an informed participant in the patient’s own healthcare decisions.

Under the doctrine of informed consent, a physician treating a mentally competent adult under non-emergency circumstances may not provide treatment without the patient’s informed consent. Maryland doctors have an ethical and legal obligation to give patients a direct right to a say in what happens to their bodies.

Malpractice or Breach of Informed Consent

There is no question that medical malpractice is interwoven with informed consent. Isn’t it medical malpractice for a healthcare provider not to fully apprise the patient of all of the risks?  Yes. However, since the Maryland Court of Appeals first recognized informed consent in 1977, Maryland case law has consistently emphasized the critical differences between malpractice and informed consent.

The Court of Appeals tells us that informed consent and medical malpractice claims may “both sound in negligence, but are separate, disparate theories of liability.”  This is not some academic discussion. Our malpractice lawyers recently won a million-dollar-plus verdict in a case where we lost on negligence but won on informed consent.

Under Maryland law, a doctor must explain the proposed treatment or procedure and its risks to the patient and to properly warn him of any material risks or dangers inherent in or collateral to the therapy so that the patient can make an intelligent and informed choice about whether or not to undergo such treatment.

The doctrine creates a duty to “explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy” to enable the “patient to make an intelligent and informed choice about whether” to undergo treatment. Our malpractice laws do not always make sense but, with informed consent, they do.

Maryland Law Is Informed Consent from the Patient’s Perspective

Unlike some other jurisdictions such as Massachusetts, Maryland views the question of informed consent from a reasonable patient perspective. In other words, the Maryland standard focuses on considering what a patient would need to know to make an informed decision.

Maryland has embraced a patient-centered approach to informed consent. The criterion for a physician’s duty of care is based not on what the physician believes a patient should be informed of before agreeing to a proposed treatment. Instead,  it centers on what information the patient needs to make an informed decision.

Consequently, the extent of the physician’s obligation to provide information is determined by the relevance of the information to the patient’s decision, guided by a standard of what a reasonable person would find important, rather than adhering strictly to a professional medical standard. Information is deemed material if a doctor knows or should know that it would be significant to a reasonable person in the patient’s situation when deciding whether to undergo a specific medical treatment or procedure.

So for informed consent in Maryland, the jury looks to the choice of treatment, and any associated risks, from the perspective of the reasonable patient. Martinez v. Johns Hopkins Hospital, 212 Md.App. 634, 70 A.3d 397 (2013)

Other jurisdictions focus on what a typical physician would say to a patient receiving a similar therapy or procedure. In this case, medical testimony would be required to establish the scope of the breach of the doctor’s duty in a medical malpractice action.

Elements of Informed Consent

In Maryland, we are not required to procure expert medical testimony to establish the scope or the “breach of the doctor’s duty,” but medical testimony is required to establish (1) nature of the risks inherent in a particular treatment, (2) probabilities of therapeutic success, (3) frequency of the occurrence of particular risks, (4) nature of available alternatives to treatment and (5)whether or not disclosure would be detrimental to a patient. In fact, under Maryland law, this testimony can also be provided by the testimony of the defendant medical doctor.

Material Risks Only

In Maryland, only “material” risks must be disclosed by the doctor to the patient. What constitutes material? There is no bright line rule for what risks are material. Again, it falls back to what the reasonable patient would believe to be material. The battles over materiality may also look to the policies of the doctors or the hospital that gave the procedure.

Most health care providers in Maryland have specific policies that state which health interventions require a signed consent form. For example, surgery, medication, anesthesia, or any invasive procedure usually requires a signed informed consent. But a written informed consent is just the beginning of the informed consent process and should be the culmination of a dialogue between doctor and patient, not the entire dialogue.

Duty to disclose material information to the patient is not restricted because the proposed treatment or therapy is not surgical or invasive. All possible material risks must be disclosed.

Causation

The last step in the informed consent analysis is causation. Most jurisdictions use an objective test for causation. A minority of jurisdictions, such as Washington, DC, Arizona, and New Hampshire, use a subjective test. The objective test is whether a reasonable prudent person in the patient’s position would have had the surgery or therapy had the risk been disclosed by the medical professional.

The subjective test is whether the particular patient (i.e., the plaintiff) would have consented to the surgery if he had been fully apprised of the risk. procedure after being informed of the risk by the health care professional. Like most jurisdictions, Maryland applies the objective test of causation.

Informed consent cases under Maryland law, like most jurisdictions, are couched as tort actions for negligence as opposed to battery or assault. For a medical malpractice case in Maryland, the rendering of medical services absent informed consent must be presented separately in the complaint as a separate and new count of negligence.

Broad Language Forms May Not Provide Informed Consent

Some of these surgical or hospital consent forms are so broad and generic that they do little to articulate specific risk to patients beyond “bad things could certainly happen.” Many patients remember signing one of these “every risk in the world” forms and assume it is the death knell for their informed consent claim. Often, it is not.

Also, the mere fact that the risk is listed does not mean the patient assumed the risk of the injury. If you are trying an informed consent violation case, this is the one that hat has to be crystal clear to the jury.

More Information on Informed Consent

• Informed Consent Maryland Pattern Jury Instruction
• Motion in Limine Regarding Consent Form in a Malpractice Trial
• Maryland’s Statute of Limitations

Key Maryland Informed Consent Cases

If you are doing legal research on informed consent law in Maryland, here are some key recent informed cases you will want to focus on in your research:

• Street v. Upper Chesapeake Medical Center (2024) (a patient initially visited the emergency room with complaints of a cool and pale right leg, indicative of potential vascular issues. The emergency medicine physician assessed her condition, noting symptoms suggestive of diminished blood flow but determining that the situation was not emergent or urgent. Instead of immediate further intervention, the physician recommended that the patient consult a vascular surgeon within three to five days and provided contact information for the surgeon. The physician also advised the patient to return to the emergency room if her symptoms worsened. Subsequently, the patient did return two days later with exacerbated symptoms, leading to her admission to the hospital. Unfortunately, the patient’s condition deteriorated, resulting in a below-the-knee amputation. The patient and her husband initiated an informed consent lawsuit against the emergency room physician and the vascular surgeon, also alleging medical negligence. The informed consent claim was premised on not adequately disclosing alternative immediate treatment options that might have prevented the escalation of her condition. The trial court, however, found that the emergency medicine physician’s recommendations did not constitute a formal treatment plan necessitating informed consent, as they were deemed precautionary rather than immediate treatment actions. But the case was reversed on other grounds).
• Collis v. Mid Atl. Skin Surgery Inst. (2023 unreported)(a plaintiff alleged lack of informed consent in Charles County from a procedure where the doctor injected Kenalog into a bump on the plaintiff’s nose, which subsequently grew larger.  Although the complaint generally alleged potential risks of Kenalog treatment and the doctor’s failure to disclose them, it did not claim the plaintiff suffered from atrophy or that her harm resulted from lack of informed consent and the case was dismissed)
• Billing v. Moulsdale (2020 unreported) (the case involved a doctor that perform an examination of the patient’s breasts and vagina for an examination for kidney stones — trial court found this was breach of informed consent as a matter of law).
• Dorchy v. Hsieh (2019 unreported) (underscoring that a certificate of a qualified expert and report attesting to the doctor’s departure from the relevant standard of care that proximately caused the injury may not be needed in a straight informed consent case).
• Hill-Higgins v. Boucree (2019 unreported) (in a dental malpractice case that underscores why you will almost certainly eventually need an expert, the court ruled that the Montgomery County trial court correctly found that the absence of expert testimony regarding alternative treatment to address the tooth pain was fatal to the plaintiff’s informed consent case).
• Armacost v. Davis, 462 Md. 504 (2019) (if there was an error in giving general foreseeability instruction to the jury in a trial against a neurosurgeon, the issue was moot because the neurosurgeon prevailed on the informed consent claim although he lost on negligence).
• Shannon v. Fusco, 438 Md. 24 (2014) (the court underscored the elements of an informed consent case, which include: (1) the duty to disclose to the patient material information that “a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment;” (2) breach of that duty by failing to make an adequate disclosure; and (3) proximate causation,” citing Sard v. Hardy.
• Burks v. Allen, 192 A.3d 847(2018) (this is a Miller & Zois case where the court affirmed the jury’s $10 million wrongful death verdict for our clients in an informed consent case involving a critical care physician’s use of Kayexalate).
• Martinez v. Johns Hopkins Hospital, 212 Md. App. 634, 70 A.3d 397 (2013) (holding that informed consent evidence was prejudicial because it as “improperly used to conflate the negligence issue’ because an informed consent allegation had not been properly pled in the Complaint)
• Fusco v. Shannon, 210 Md. App. 399, 63 A.3d 145, (2013) (informed consent and medical negligence are separate and distinct claims that require proof of different elements)
• Schwartz v. Johnson, 206 Md. App. 458, 49 A.3d 359 (2012) (trial court properly granted motion in limine and precluding evidence of informed consent)
• McQuitty v. Spangler,410 Md. 1, 18,976 A.2d 1020 (2009) (court overrules Reed v. Campagnolo – see below — finding that in an informed consent lawsuit in Maryland is viable when a doctor withholds important information about a proposed course of medical treatment causing the patient to decide on medical treatment that he/she would not have made with the correct information.)
• Dingle v. Belin, 358 Md. 354, 749 A.2d 157 (2000) (finding that “evidence of informed consent…is both irrelevant and unduly prejudicial in medical malpractice claims without claims of lack of informed consent”)
• Landon v. Zorn, 389 Md. 206, 230, 884 A.2d 142, 156 (2005) (upholding Worcester County trial judge’s ruling to instruct the jury on a malpractice but not on an informed consent in a failure to diagnose necrotizing fascitis [flesh eating bacteria] case)
• Reed v. Campagnolo, 332 Md. 226, 242, 630 A.2d 1145, 1153 (1993) (in later overruled opinion, the court says in answer to a certified question from U.S. District Court that the duty to obtain informed consent arises only when a medical treatment or procedure has been proposed by a physician involving an “affirmative violation of the patient’s physical integrity.”)
• Zeller v. GBMC, 67 Md. App. 75, 506 A.2d 646 (1986) (holding in a Baltimore malpractice case that a doctor’s rendering of medical services without the patient’s informed consent constitutes separate and new count of negligence that needs to be pled as a separate count).
• Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977) (Maryland high court first recognized as a separate negligence-based (as opposed to battery) cause of action of informed consent against a surgeon in a tubal ligation sterilization case in Talbot County — the court also looked at other jurisdictions in determining the subjective test should be the law in Maryland).

Hiring a Lawyer in Maryland

If you believe you have a medical malpractice case in Maryland, call Miller & Zois at 800-553-8082. We will give you legal advice at no cost or obligation. You can also get a free on-line consultation here.