If one medical malpractice defense attorney had had his way,merely explaining the complications that can accompany a medical procedurewould be enough to defeat a medical malpractice claim. But, in H. Jeffrey Schwarz, et al v. Arvia Johnson, Maryland ‘s Court of Special Appeals sided with the trialcourt in soundly rejecting such a defense.
A Baltimore City jury found that Dr. H. Jeffrey Schwartz’s negligence caused Arvia Johnson’s injuries and awarded Johnson medical expenses of $23,791.19 and non-economic damages of $650,000.
The doctor’s attorney wanted to introduce evidence that the patient was advised of the risks and complications of a routine diagnostic screening colonoscopy to support an assumption of risk defense. The attorney argued that assumption of the risk is a permissible defense in medical malpractice claims.
The trial court observed that use of that legal defense in this instance would function as a complete bar to recovery because it is an abandonment of the right to complain if something went wrong. Maryland’s Court of Special Appeals agreed with the trial court.
“In our view, for a court to hold that a patient assumed the risk of a physician acting negligently in a medical procedure is “tantamount to a finding that the physician owned no duty” to the patient,” the appellate court noted.
“Accordingly, we hold that, except in cases involving a refusal or delay in undergoing recommended treatment or the pursuit of unconventional medical treatment, a healthcare provider cannot invoke the affirmative defense of assumption of risk in a medical malpractice claim brought by his or her patient where a breach of informed consent has not been alleged,” the court said.
Schwartz is a critically important appeals decision for medical malpractice claims. It establishes for the first time in Maryland that doctors and their lawyers may not raise the content within informed consent forms — often signed in haste by the patient — as a means of defeating a negligence claim. Although many other state appellate courts have ruled against allowing informed consent documents and discussions into evidence, Schwartz is the first of its kind in Maryland.
The Court of Special Appeals was correct in noting that where breach of informed consent is not alleged, the issue of consent has no relevance to the jury’s determination as to whether a surgery or procedure was performed negligently. Historically, defense lawyers admitted informed consent evidence to show the patient was aware of the risk. In many instances, juries found no liability on the provider because the patient had assumed the risk of injury.
Because evidence of informed consent cannot defeat a claim in negligence; however, as the Schwartz court held, introduction of informed consent information, whether written or verbal, would serve only to confuse a jury into believing that a physician’s negligence was assumed by the patient when it was not.
I also wish to express my gratitude to the late Stephen Hughes, the attorney who represented the Johnsons in this case, and established useful and much needed clarity on this important legal issue. Stephen was a consummate lawyer who was able to get the original unreported opinion classified as reported by the Court of Special Appeals. Steve and his contributions to negligence jurisprudence will be sorely missed.
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