Maryland Court Rules Expert Testimony Required to Establish Plaintiff’s Claim for Lack of Informed Consent

The Court of Special Appeals of Maryland recently reviewed a personal injury case in which a patient sued her doctor for a failed sterilization procedure. In Tyler v. Judd (Md. Ct. Spec. App. June 30, 2016), the plaintiff sought treatment from her doctor to schedule a tubal ligation. She alleged that the doctor responded to her request by talking to her about Essure, stating that it was a non-reversible, pain free, 100 percent sterilization procedure. Based on that conversation, the plaintiff agreed to undergo insertion of the coils in her fallopian tubes. After the procedure, the plaintiff experienced ongoing abdominal pains and also became pregnant with her third child a short time later. The plaintiff gave birth to a healthy boy and had another doctor remove the coils. The plaintiff then brought suit against the doctor on grounds including lack of informed consent.medical negligence

At the trial, the plaintiff testified, along with several other witnesses. However, the plaintiff did not call any medical experts to testify in support of her claim. At the close of her case, the defendants moved for judgment, arguing that the plaintiff failed to present expert medical testimony, which is required for a claim of a lack of informed consent. The trial court agreed, ruling that expert testimony is needed to establish the nature of the risks inherent in a particular treatment, and that there was no testimony with respect to medical alternatives or the treatment’s percentage of failure, even the percentage of the Essure failure rate. The plaintiff subsequently appealed.

In Maryland, the doctrine of informed consent imposes a duty on a physician to explain the procedure to the patient before treatment, and to warn the patient of any serious risks or harm related to therapy, in order to allow the patient to make an informed decision about whether or not to undergo the treatment. This duty to disclose requires a doctor to inform the patient of the nature of the condition, the nature of the suggested treatment, the probability of success of the treatment and any alternatives, and the risk of undesirable consequences associated with the treatment. In bringing a negligence claim for lack of informed consent, therefore, the plaintiff must show a breach of this duty, causation, and injuries.

On appeal, the court examined previous case law to determine the circumstances under which expert testimony is required in informed consent cases. Specifically, the court found that expert testimony is required to show the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment, and whether or not disclosure would be detrimental to a patient. The court went on to explain that such expert testimony is necessary to a jury’s determination of both the scope of the doctor’s duty to disclose and the element of causation.

The appeals court ultimately affirmed the lower court’s judgment, holding that without the required expert testimony, the jury could not determine what a reasonable person in the position of the plaintiff would have done if given all of the pertinent information.

If you or a family member has been a victim of medical malpractice, you may be entitled to compensation for your loss. The medical malpractice attorneys at the Maryland firm of Foran & Foran, P.A. provide experienced and trusted legal guidance to individuals in many types of personal injury cases, including medical negligence and malpractice. To consult with one of our knowledgeable injury lawyers, call Foran & Foran, P.A. at (301) 441-2022 or contact us online.

More Blog Posts:

Maryland Court Denies Expert Medical Testimony in Negligence Claim, Maryland Personal Injury Blog, published June 14, 2016

Maryland Court of Special Appeals Upholds Majority of Million-Dollar Jury Verdict in Medical Malpractice Case, Maryland Personal Injury Blog, published December 9, 2015