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A doctor's duty to obtain patient's informed consent to treatment

Most people in Maryland think that medical malpractice involves a doctor's mistake in diagnosing a medical condition or in prescribing treatment or making a mistake in the administration of treatment. Another kind of doctor error is the failure to obtain the patient's informed consent to treatment. Defining the term informed consent is not as simple as it may at first appear.

The Maryland Supreme Court has defined various aspects of informed consent in its decisions over the last four decades. The Court stated the basic rule in the case of Sard v. Hardy. A doctor has a professional duty to explain to the patient the risks inherent in a particular treatment, the likelihood of therapeutic success, the likelihood of the occurrence of various risks, the availability of alternative treatments, and whether disclosing this information would be harmful to the patient. (Maryland courts commonly call this list the Sard factors.) The policy behind the Sard factors is to ensure that the patient understands the nature of the illness or affliction for which care has been sought and the material risks associated with treating the condition. In short, the patient must be able to make an intelligent and informed choice about whether to undergo the treatment prescribed by the doctor.

In order to establish a claim of medical malpractice based upon a physician's failure to obtain the patient's consent, the patient must prove the existence of a material risk of treatment, the physician's failure to warn of the risk, the physician's knowledge (either or imputed) of the risk and a causal connection between the failure to obtain consent and the harm suffered by the patient.

The failure to obtain informed consent and the occurrence of harm caused by the failure are the basic elements of a medical malpractice case predicated on the physician's failure to obtain the patient's consent. Anyone who has suffered injury or lost a loved one due to a medical risk that was not fully and clearly explained by the treating physician may wish to consult a lawyer who handles malpractice cases. Such a consultation can provide a useful evaluation of the evidence and law that will determine the case's outcome and the likelihood of recovering damages.

Source: Maryland Courts, Fusco v. Shannon, accessed on June 3, 2017

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