Informed Consent Maryland Pattern Jury Instruction

Maryland Civil Pattern Jury Instruction 27: 4 (2010).

1. Informed Consent, Generally:

Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risk 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. This is known as the doctrine of informed consent.

In fulfilling the duty to disclose, the physician is required to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material risks of unfortunate outcomes associated with such treatment.

A “material risk” is defined as “a risk which 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 have the particular medical treatment or procedure.”

The physician’s duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a “material risk” is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk. Whether the patient would have consented to the procedure, if informed of the risk, is a relevant factor to be considered, but is not conclusive.

The physician is not required to divulge all risks, but only those which are material to the intelligent decision of a reasonably prudent patient.

2. Informed Consent (Limitations on Duty to Disclose):

The physician has a qualified privilege to withhold information on therapeutic grounds, as in those cases where a complete and candid disclosure of possible alternatives and consequences more likely than not might have a detrimental effect on the physical or psychological well-being of the patient, or where the patient is incapable of giving his or her consent by reason of mental disability or infancy, or has specifically requested that he or she not be told.

Do you need an expert in informed consent cases in Maryland?  To get to this jury instruction, you likely need expert testimony even in an informed consent case.  In Sard v. Hardy, the Maryland high court set out the instances where informed consent cases need an expert:

1. the nature of the risks inherent in a particular treatment
2. the probabilities of therapeutic success
3. the frequency of the occurrence of particular risks
4. the nature of available alternatives to treatment
5. whether or not disclosure would be detrimental to a patient.

Additionally, the Sard Court opined that there is a proximate cause requirement for informed consent cases when an objective standard is applied to whether a reasonable person in patient’s position would have done had he been fully apprised of the risks.

Can you get an expert without hiring one?  Sometimes, you can get in the evidence you need through the defendant and her experts.

More Informed Consent and Medical Malpractice Resources

• Informed Consent in Maryland (an overview)
• Motion in Limine Regarding Informed Consent in a Malpractice Trial

Specific Cases

• Analysis of Goldberg v. Boone (Montgomery County, Maryland CSA Case informed consent)
• Analysis of McQuitty v. Spangler (Baltimore County, Maryland 2009 CSA Informed Consent Opinion)
• Analysis of Bubb v. Brusky (2009 informed consent case from Wisconsin)