Informed Consent: Failure to Give Proper Information About Treatment Options

Over the past two decade, STSW’s Medical Malpractice / Wrongful Death team has built an impeccable, nationally recognized reputation for obtaining successful results for its clients. On behalf of their clients, accomplished trial lawyers Andrew G. Slutkin and Jamison G. White routinely take on the region’s leading hospitals and top insurers, and win. For Mr. Slutkin and Mr. White, it is about more than just dollars recovered, but rather, they are devoted to improving the quality of life for their clients and their families. Along the way, our team has routinely successfully handled a number of cases for clients who have been victimized by a health care provider’s failure to provide them with the proper information about a planned procedure to enable them to make an informed choice about whether to proceed with it or not. If you or a loved one believe you were not given proper information from a health care provider such that you could not make an informed decision about your health, call our team for a free consultation at 410-385-2225.

As a medical patient, you have the right to make decisions pertaining to your own health, medical conditions and treatment options. The process of understanding the risks and benefits of alternative avenues of treatment is known as "informed consent." What this means is that doctors must give you information about a particular treatment or test in order for you to decide whether or not you wish to go forward with the procedure. In essence, the doctors give you this information so that you can make an informed decision about your health. As in all states, in Maryland, a patient must give his/her voluntary, informed consent for all treatment.

In Maryland, although there is no bright–line test, or all–inclusive list of items that must be disclosed by a physician in order to procure a patient informed consent, five categories of information generally must be communicated to the patient: (1) the nature of the risks inherent in a particular treatment (i.e., what are the risks); (2) the probabilities of success; (3) the frequency of the occurrence of particular risks (how often do particular complications happen); (4) the nature of available alternatives to treatment (what are the other options for a particular patient); and (5) whether or not disclosure would be detrimental to a patient. Mahler v. Johns Hopkins Hospital, Inc., 170 Md.App. 293, 907 A.2d 276 (2006). Recently, the Court of Appeals also made clear, that in addition to these five categories, "other considerations" may also need to be "discussed and resolved" on a case–by–case basis, based on the materiality of that information to a patient's decision. Goldberg v. Boone, 396 Md. 94, 125, 912 A.2d 698, 716 (2006). In that case, the court found that a physician was obligated to inform the patient that he had only performed the patient's contemplated surgical procedure one time and that there were other more experienced surgeons in the region that could perform the surgery. In determining the proper test for measuring the scope of a physician's duty to disclose information to a patient, Maryland courts are clear. The appropriate test is not what the physician, in the exercise of his medical judgment thinks a patient should know before acquiescing in a proposed course of treatment, but what the particular patient needs in order to make an intelligent decision. Sard v. Hardy, 281 Md. 432 (1977). That need is whatever is material to the patient's decision. A material risk, in turn, is one 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 submit to a particular medical treatment or procedure.

Informed consent cases are difficult matters because they often boil down to a dispute between the physician and patient as to what medical information was disclosed. As a result, it is paramount that persons who believe they were not properly provided pertinent information regarding a surgical or medical procedure or test retain an attorney to investigate this matter on their behalf. As experienced Baltimore, Maryland medical malpractice attorneys, we have successfully handled numerous informed consent cases through the years. As a result, we know what to look for in the medical records and the questions to ask during litigation to hopefully obtain a favorable result. If you or a loved one would like a free consultation to discuss whether you were provided with the requisite information necessary to make an informed medical decision, call the lawyers at STSW.