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In Disputes Over Patient Consent, It’s All About the Doctor

For a patient claiming lack of adequate consent to a medical procedure, the fight is with the physician, not the physician’s employer or the hospital where by surgery was performed.

Under Maryland law, the duty to provide a patient with informed consent lies with the doctor, a U.S. District Court judge in Maryland ruled last month. This is because the doctor “is uniquely qualified through education and training, and as a result of his or her relationship to the patient, to determine the information that the particular patient should have in order to give an informed consent,” the court said, citing cases deciding the issue in other states.

In this most recent case, a man who injured his back while on the job as a deliveryman underwent surgery that eventually led to infections, requiring follow-up surgeries. The patient sued the doctor, the doctor’s employer and the hospital for lost wages, medical expenses and pain and suffering. He said he never would have consented to the initial back surgery if he had been adequately informed beforehand about the risk of infection.

The court dismissed the case against the employer and the hospital, though the suit against the doctor will continue.

To fulfill the duty of obtaining informed consent, the doctor must discuss with the patient the nature of the ailment and the proposed treatment, the probability of success, alternatives to treatment and the risk of adverse consequences.

This recent case was the first time a court in Maryland had ruled on whether the duty to obtain informed consent may be imposed on a doctor’s employer. The court found that the employer and the hospital could only be liable for obtaining informed consent if they had specifically assumed the duty or if the doctor were acting as an agent on behalf of either of them.

An employer can be held vicariously liable for acts of an employee if the employee is acting as an agent for the employer. The employer, however, is not liable unless the act or the result was authorized or intended by the employer. Applying that analysis to the case, the court found that the doctor, not the physician group that employed him, “had the exclusive control over the manner in which he performed his duty to obtain informed consent. .. Therefore, [the doctor] was not acting as a servant of [the employer] when seeking [the patient’s] informed consent.” Accordingly, the employer could not be held liable for the alleged failure to obtain informed consent.

The court applied similar logic in dismissing the case against the hospital, finding that the physician was not acting as an agent on behalf of the hospital. The court also looked at whether the hospital’s use of its own patient consent forms was tantamount to the hospital somehow assuming the duty for the doctor. Even though the hospital itself had obtained a consent form from the patient, the court determined that the form was “a precautionary measure” of the hospital, aimed mainly at helping doctors obtain a record of the consent. Because the hospital “does not have an independent duty to obtain informed consent and did not specifically assume this duty,” the court said, “it is not liable.” 

The decision, while helpful to physician practice groups and hospitals, makes clear the responsibility of physicians to obtain informed consent and to ensure that this is a conscious part of practice routine.

For more information please contact Jay Merwin at 410-583-2400 or merwin@bowie-jensen.com

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