Withholding of Material Information From Patient Grounds For Lawsuit in Maryland

Article posted on: 08/03/2009

On July 27, 2009, the landscape of Maryland's informed consent doctrine was changed in favor of Plaintiffs when Maryland highest court, the Court of Appeals decided the case of McQuitty v. Spangler. In McQuitty, a mother who had been hospitalized for a partial-placental abruption (premature separation of the placenta from the wall of the uterus that carries with it the risk of injury to the unborn child) alleged that her doctor failed to inform her of the risk and available alternatives related to this change in her pregnancy. As a result, the mother was forced to choose between two options: allow the pregnancy to go forward with the known risks or deliver the baby early. At trial, the mother argued that the doctor breached Maryland's informed consent doctrine by failing to disclose to her material facts about the degree of placental separation, facts upon which a reasonable person in her position could have, or would have, made a different decision. At the first trial, the jury was unable to reach a verdict on the question of informed consent. Two years later, in a second trial, the jury awarded the mother/family over $13 million. The defendant doctor appealed. Maryland's intermediate appellate court, the Court of Special Appeals, held that Maryland's doctrine of informed consent applied only to affirmative violations of the patient's physical integrity, i.e., there has to have been treatment that was engaged in by the doctor that would not have been in order to bring an informed consent claim. In reaching this decision, the Court of Special Appeals relied upon the long-standing case of Reed v. Campagnolo, 3323 Md. 226, 630 A.2d 1145 (1993), in which the court concluded that lack of informed consent is similar to criminal battery, requiring an "affirmative violation of the patient's physical integrity." This decision was appealed to the Court of Appeals by the McQuitty family. In a landmark decision, the Court of Appeals concluded that the Reed case was erroneous and found that an informed consent lawsuit in Maryland can be properly maintained in circumstances in which a doctor withholds material information about a proposed course of treatment that causes the patient to make a decision about that treatment that he or she would not have made if the withheld information had been disclosed in the first instance.

Although there is no bright line test or all inclusive list of items that must be disclosed by a physician in order to procure informed consent, five categories of information generally must be communicated to the patient: (1) the nature of the risk 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; and (5) whether or not disclosure would be detrimental to a patient.

The lawyers at STSW have vast experience in handling informed consent cases in Maryland and Washington D.C. If you or a loved one believe you have been the victim of a similar failure to disclose critical or material information regarding a medical treatment, call the lawyers at STSW for a free consultation at (410) 385-2225. Our lawyers represent patients in and around the Baltimore and Washington D.C. areas against various hospitals and health care providers and have successfully handled many similar cases to the above-described case.