Health care providers have long pointed to personal injury claims against them as part of the reason for the rise in the cost of health care. Others have argued that there is no crisis in malpractice insurance for doctors, and that such claims are necessary to police the health professions. Last week Maryland’s highest court expanded on one theory upon which health care provides may be liable to their patients, in the case of McQuitty v. Spangler.
According to the opinion from the Court of Appeals, the plaintiff mother was hospitalized at the 28 week mark in her pregnancy, for what turned out to be a partial abruption or separation of the placenta. Such a condition, the opinion notes, cannot be reversed and can lead to fetal death. This patient had a prior history of a C-section and could not otherwise deliver a healthy child. The evidence was that if the surgery was done immediately there were risks of a premature birth, as well as risks if the pregnancy continued. It was agreed that the doctor did not offer his patient the alternative of an immediate surgical delivery.
The defendant doctor developed a treatment plan, that kept the mother in the hospital until a later date when a C-section would be performed. After 39 days of in patient treatment, a complete abruption occurred and an emergency C-section was performed. Unfortunately, the child was neurologically damaged with severe cerebral palsy. The mother filed suit against her obstetrician and others, for medical malpractice in the treatments provided, as well as failing to obtain her informed consent to the course of treatment.
The first trial against the doctor resulted in a defense verdict on malpractice, but a hung jury on lack of informed consent. The case was tried again on that theory, and a verdict of over $13 million was returned by a jury. After trial, the trial judge took away the verdict based upon his finding that Maryland law only allowed for recovery on this theory when the proposed procedure involved “affirmative violations of the patient’s physical integrity.”
The Court of Appeals noted that a claim of medical malpractice involves a claim that a health care provider had breached his duty to act with ordinary medical skill and judgment, as measured by the standard of care in the profession. The related but somewhat different claim of failure to obtain informed consent is based on the principle that a doctor must obtain the patient’s consent to treatment before undertaking it. This involves not only explaining the nature of the condition and of the proposed treatment, but also the probability of success of the recommended treatment an alternatives, and the risk of a bad outcome.
The Court discussed its earlier cases, which it said in hindsight led to the belief that only wrongs affecting the patient’s physical integrity could support a claim of lack of informed consent. Instead, it announced that the rule would now be that a provider has a general duty to inform the patient of information that the doctor “knows or out 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 or procedure.”
This decision may very well lead to lack of informed consent claims being more commonly brought in medical negligence cases.