Make Plaintiffs Prove the Element of Causation in their Informed Consent Claims

Recently, in our first Covid-19 trial, we successfully defended a surgeon against the claim that he failed to obtain the plaintiff’s informed consent for an endoscopic carpal tunnel surgery.

The doctrine of informed consent requires physicians to explain a procedure to patients, discuss alternatives, if any, and to warn of any material risks.

In trial, an issue arose as to whether a separate causation question — as an element of the informed consent claim — should be included on the verdict sheet. Plaintiff argued that a causation question was unnecessary, pointing to the Maryland pattern jury instruction for informed consent, which omits any specific instruction on causation. Plaintiff proposed the verdict sheet read as follows:

Do you find that the physician failed to obtain the patient’s informed consent for the surgery?

On behalf of the defense, we proposed the following addition regarding causation:

Do you find that a reasonable person in the patient’s position would have withheld consent to the surgery had material information been disclosed?

Maryland’s seminal informed consent case, Sard v. Hardy, 281 Md. 432 (1977), makes clear that a claim for informed consent requires proof of causation. The test is an objective one — whether a reasonable person in the patient’s position would have withheld consent to surgery had all the material risks been disclosed.

In the end, the Judge refused our request. While we felt that an appeal point had been preserved, we did not have to go that route since the jury concluded that the patient gave her informed consent for the proposed care and found in favor of the doctor.

Bottom Line: Just like a negligence claim, causation is a required element for informed consent claims. Don’t overlook it — it’s worth fighting for!

If you have a case involving issues of informed consent, please contact us. We’re here to help.

April Hitzelberger

April Hitzelberger

April Hitzelberger is a partner at Waranch & Brown. Her practice focuses on the defense of health care providers in medical malpractice, research study and professional licensure matters. She has successfully litigated and tried cases in the District and Circuit Courts of Maryland and represented health care providers in licensing and credentialing matters. She also maintains a special interest in appellate advocacy and has argued before the Maryland Court of Special Appeals.
Share on facebook
Share on twitter
Share on linkedin
Share on email