Published by Arfaa Law Group
There are risks associated with most medical care, and doctors typically inform their patients of such risks before proceeding with treatment. Simply because a physician informs their patient of the potential complications that could arise during a procedure does not mean that they cannot be held liable for medical malpractice, though. Further, in most instances, the fact that a doctor obtained a patient’s informed consent is irrelevant to the issue of whether the doctor was negligent, as discussed in a recent Maryland medical malpractice matter. If you sustained injuries during an improperly performed procedure, you might be owed compensation, and you should consult a Maryland medical malpractice attorney.
The Facts of the Case
It is alleged that the defendant performed a routine colonoscopy on the plaintiff. During the procedure, the defendant perforated the plaintiff’s colon. The plaintiff subsequently needed to undergo numerous surgeries, had permanent symptoms of short bowel syndrome and suffered other injuries. As such, he instituted a medical malpractice lawsuit against the defendant. Prior to trial, the plaintiff moved to preclude the defendant from introducing or discussing the doctrine of informed consent on the grounds that it was legally irrelevant, as he was not asserting an informed consent claim.
It is reported that the defendant argued that the doctrine of informed consent was relevant to his defense of assumption of the risk. The court granted the plaintiff’s motion, and following a trial, the jury found in favor of the plaintiff, awarding him the cost of his medical care and over $600,000 in noneconomic damages. The defendant appealed, arguing that the trial court erred in granting the plaintiff’s motion.
Assumption of the Risk in Medical Negligence Cases
On appeal, the court affirmed the trial court ruling, explaining that, other than in exceptional circumstances, assumption of the risk is not a defense to a medical negligence claim. The court elaborated that to establish assumption of the risk, the defendant needs to demonstrate that the plaintiff knew of the risk of the danger, appreciated that risk, and voluntarily confronted the risk.
The doctrine of assumption of the risk is the result of voluntary and intentional exposure to a known danger, which results in the plaintiff consenting to relieve the defendant of the obligation to conduct himself in a certain way. The court found that adopting the belief that a patient assumed the risk of a doctor negligently performing a medical procedure is akin to finding the doctor did not owe the patient a duty. Thus, the court held that except for cases involving delay or refusal to undergo recommended care, a doctor cannot invoke the assumption of risk doctrine in cases that do not involve lack of informed consent.
Meet with an Experienced Maryland Medical Malpractice Attorney
Surgical errors can cause debilitating and lasting injuries, and doctors that make careless mistakes during procedures may be liable for medical malpractice. If you were harmed by a negligently performed surgery, it is wise to meet with an attorney to discuss your potential claims. The experienced Maryland attorneys of Arfaa Law Group can inform you of your rights and help you to seek the best legal outcome available under the facts of your case. You can contact us via our online form or by calling us at (410) 889-1850 to set up a meeting.