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Maryland's Common Law Continues to Evolve: McQuitty v. Spangler Eliminates the Physical Invasion Requirement for Informed Consent Cases

On July 24th, the Court of Appeals of Maryland issued McQuitty v. Spangler, No. 137, Sept. Term, 2008, in which the Court effectively abrogated its prior holding in Reed v. Campagnolo, 332 Md. 226 (1993) that an informed consent cause of action must involve a failure to communicate a material risk of a surgery, treatment or procedure which is invasive in nature, and may not arise from a failure to communicate medical information where no affirmative treatment or procedure is involved.

The Court's decision in McQuitty is an interesting development in the common law of informed consent, and is another example of the Court's willingness to review and reverse its prior decisions in the face of outdated and misunderstood rulings from the Court on important issues of our times. These events of reversal are both fascinating and encouraging and demonstrate the vitality and usefulness of our living common law. I am pleased to again have the opportunity to write on this new development in the law of torts.

Informed consent is common law cause of action wrought with conflict and confusion. A concept that would seem so simple from the words of the seminal Maryland case of Sard v. Hardy--that a person is entitled to all information that would be material to his or her decision to proceed with or forego a treatment or procedure-- has created a host of unanswered questions for the bench and the bar. For example: "Is informed consent a separate cause of action or is it simply part and parcel of a pure negligence claim?" "Is expert testimony required to get an informed consent case to the jury?" "Why did the legislature in enacting the health claims arbitration procedures exclude informed consent cases from the requirement that an expert certify the merits of the claim before suit can be filed in a circuit court?" "Must the health care provider's conduct involve physically invasive procedures for a breach of informed consent to occur, or may a claim arise simply by virtue of the withholding of information or simple inaction that would have been rejected by a reasonable person had they been given the opportunity?"

Although many of these questions remain unanswered, the Court of Appeals in its July 24th decision in McQuitty resolved that breaches of informed consent may arise in the absence of a physically invasive treatment or procedure and that a provider's failure to communicate an appropriate course of care where no procedure has yet been performed but was merely contemplated is sufficient to constitute a breach of informed consent. Although a plain reading of the seminal Maryland case of Sard v. Hardy would bear out the holding in McQuitty, several cases that preceded McQuitty required a different outcome.

In Reed v. Campagnolo, 332 Md. 226 (1993), the Court of Appeals unanimously held that a cause of action for informed consent does not exist when the allegedly negligent conduct involves a failure to inform a patient of the availability, risks and benefits of testing for birth defects because it did not involve an affirmative treatment or act as opposed to advice or passive inaction. The Court was reluctant to leave to reasonable people the question as to whether certain testing and the options available if such tests revealed an abnormality would be desirable to a patient, or more specifically, whether they could decide on their own whether the information was "material." The Reed Court concluded the issue of informed consent should be submitted to a jury only after expert testimony established the materiality of the information and thus was more a pure negligence action than an informed consent case that reasonable jurors could decide on their own.

Until the Court's decision in McQuitty, Reed and the subsequent cases of Landon v. Zorn, 389 Md. 206, 230 (2005) and Arrabal v. Crew-Taylor, 159 Md. App. 668, 684 (2004) represented the law in this state as it relates to informed consent. Landon re-affirmed that the doctrine of informed consent was inapplicable when a doctor failed to recommend a diagnostic test. In Arrabal, the Court of Special Appeals rejected an informed consent claim grounded in the physician's failure to offer an emergency Cesarean section after detecting fetal distress. Both cases (and others) are now effectively overruled by McQuitty.

The facts of McQuitty are not much different than those of Reed and Landon. The plaintiff suffered from partial placental abruption at an early stage in her pregnancy. The defendant, her ob-gyn, decided that because of the seriousness of the condition and the extended distance between the plaintiff's home and the hospital, it would be best for her to remain hospitalized until the baby was delivered. The plan at the time was to delivery the child at thirty-five weeks. During the course of Ms. McQuitty's six week stay at the hospital, her fetus' condition worsened, the abruption became more pronounced, and there were signs of fetal distress. The defendant was aware of the worsening condition but did not offer the plaintiff a choice to deliver early to avoid catastrophic consequences. According to plaintiff's experts, even though the baby was not full term at that time, he would have been born and remained healthy. Ultimately, the fetus went into full blown distress due to oxygen and nutrient deprivation, was delivered emergently, and suffered from profound health conditions that could have been avoided, according to plaintiffs' experts, had the fetus been delivered earlier when the signs of fetal compromise were or should have been known.

The case was tried twice. In the first case, the jury returned a verdict in favor of the defendant physician on the issue of negligence but was deadlocked on the issue of breach of informed consent. A new trial on that claim was ordered on the informed consent case and the second jury returned a $13 million verdict. The trial judge granted defendant's motion NOV. That decision was affirmed by the Court of Special Appeals in an unreported opinion. The Court of Appeals reversed and remanded the case for consideration of a remittitur motion filed by the defendant.

The decision by plaintiffs' counsel to challenge the settled common law was clearly motivated in part by the needs of the profoundly handicapped child, the outcome of the two trials, and by glimmers of hope emanating from a several cases that appeared not to require a physical invasion despite the holdings in Reed and Landon.

In Faya v. Almaraz, 329 Md. 435 (1993), for example, the Court affirmed a claim of informed consent based upon a physician's failure to disclose to his patient that he was infected with the AIDS virus. And in Goldberg v. Boone, 396 Md. 94 (2006), the Court held that it was correct for the trial judge to submit an informed consent claim to the jury where the evidence reveled that a physician did not inform his patient that he had limited experience in performing a surgery and that other surgeons were more experienced with the surgery.

Clearly, the Court could have preserved the precedent of Reed by rejecting the McQuittys' allegations of breach, which fit neatly into the cast of physician inaction with no attendant physically invasive treatment. Or it could have focused on the accompanying physical intrusions which occurred during the treatment process to distinguish the case from Reed. Indeed, although plaintiffs' counsel argued in the alternative that they had satisfied the physical invasion requirement by evidence of the insertion of intravenous lines, serial injections of certain medications, the insertion of a foley catheter and serial extraction of blood for analysis, they also pressed for an outright change in the common law. In the end, the Court ultimately refused to indulge in a disingenuous attempt to preserve the holding in Reed and unequivocally ended twenty-five years of confusion and inconsistency by eliminating the physical intrusion requirement:

"What has confused the understanding of the doctrine of informed consent, nevertheless, is the apparent introduction of a physical invasion requirement in Reed. . . . In that case, when attempting to distinguish a failure to recommend or instruct about a diagnostic procedure from a failure to obtained informed consent, we cited the New York case of Karlsons v. Guerinot, 57 A.D.2d 73 (Ny.App.Div. 1997). In so doing, we shifted the focus of the doctrine of informed consent from a healthcare provider's duty to divulge material information to a patient to the act undertaken by the provider."

* ** *

Viewed with the benefit of hindsight, our reference to Karlsons deviated from our common law roots, as well as from cases in which we have explicitly stated that an allegation of lack of informed consent sounds in negligence, as opposed to battery or assault, in direct contravention to Karlsons.

In the present case, we are reviewing the grant of judgment notwithstanding the verdict premised upon the requirement of a physical invasion. We hold today that this is not a requirement to sustain an informed consent claim.

The influence of public policy, sometimes referred to as the fifth element in tort, drives the evolution of the common law as typified in McQuitty. As of late, issues of health care predominate the national agenda. Medical treatment and the availability of more accurate and specific medical information are certainly becoming increasingly important in medical decision making. The internet has helped to educate patients about their medical conditions. According to the President's Council of Economic Advisors who are pressing for health care reform, many Americans are receiving too much treatment with little overall net benefit. Today, decisions to forego medical treatments are as important as decisions to undergo them. The McQuitty decision appears to embrace all of these concepts and brings much needed clarification to the law of informed consent while giving patients greater autonomy over their own health care decisions.

The lawyers at Belsky, Weinberg & Horowitz have litigated successfully informed consent cases of a variety of sorts. The most recent victory came in the case of Mahler v. Johns Hopkins Hospital, which was tried twice in Baltimore City. That case was ultimately settled for a confidential amount and had a very complicated procedural history. Should you have a question or concern as to whether you or a family member received adequate informed consent before undergoing a procedure, please contact Alan J.Belsky who will provide a consultation free-of-charge.

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