Informed Consent: Street v. UCMC 3
This post is part 3 of a series on the recent Maryland medical malpractice case of Street v. Upper Chesapeake Medical Center, Inc. The Appellate Court of Maryland issued a reported opinion on March 1, 2024. This post addresses the Court’s informed consent ruling.
In part 1, I addressed the issue of when an expert is in a “similar specialty” to that of the defendant doctor under CJP 3-2A-02(c)(2)(ii)(1)(B). In part 2, I then addressed the Court’s ruling on the issue of peremptory challenges.
Facts
Here, I will repeat the basic facts of the case. The plaintiff sued a hospital, an emergency room doctor, a vascular surgeon, and their practice groups. She alleged that as a result of malpractice, she had to undergo a below-the-knee amputation. After a two-week trial, the jury then returned a defense verdict, and the plaintiff appealed. (Op. at 1).
On June 16, 2017, the plaintiff went to the emergency room. Her right foot was numb, pale, and cool. Thereafter, an ultrasound showed an abnormal Ankle-Brachial Index (ABI). After a physical exam, Dr. Lu specifically found no emergent vascular compromise to warrant emergent intervention. However, due to the low ABI, she recommended follow-up with vascular surgery if symptoms continued (Id. at 3-4).
On June 18, the plaintiff then returned to the ER, reporting that the pain was worse and the top of her foot was icy cold. Dr. Bassi admitted the plaintiff. The ER doctor accordingly requested a vascular surgery consultation. The consultation did not occur for two days. (Id. at 5-6).
Informed Consent
The plaintiff asserted an informed consent claim in which she contended that ER Dr. Lu had to offer alternatives to discharge, including an immediate consult with a vascular surgeon and admission to the hospital. (Id. at 20). An informed consent claim is based on a doctor’s duty to provide sufficient information for a patient to decide whether to submit to a particular treatment. Maryland has described this as a duty to reveal: “the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment.” Sard v. Hardy, 281 Md. 432, 439-40 (1977).
Informed Consent Cases
The Appellate Court discussed prior Maryland informed consent cases:
- Sard v. Hardy, 281 Md. 432 (1977): The plaintiff stated an informed consent claim when an obstetrician performed tubal ligation without telling the patient there was a risk of failure, and other sterilization procedures with lower risks of failure were available.
- Reed v. Campagnolo, 332 Md. 226, 241 (1993): when a physician does not propose treatment, there is no informed consent claim.
- McQuitty v. Spangler, 410 Md. 1 (2009): Informed consent claims also apply to treatment plans.
The Appellate Court found that ER Dr. Lu did not recommend a treatment plan she would oversee. She suggested following up with a vascular surgeon or returning to the ER if the plaintiff worsens. A doctor has no duty to disclose alternative treatment options if the doctor has concluded that they are not needed. The Court noted the chaos that could occur by informing the patient that admission was an option and then declining to do it if the patient requested it (Id. at 33-36).
The plaintiff claimed that Dr. Lu should have recommended admission and an immediate consult with a vascular surgeon and that not doing so was a breach of the standard of care. The Appellate Court ruled that this was an ordinary negligence claim, not informed consent (Id. at 40).
Commentary
I believe the Appellate Court got the informed consent claim correct. The plaintiff’s informed consent argument would not work in practice. Envisioning the exchange between the doctor and patient is all that is needed to reveal that such a rule would not work:
- Doctor: One of the treatment options is for us to admit you and get you an immediate consultation with a vascular surgeon
- Patient: I’d like that.
- Doctor. You can’t have that.
- Patient: Why?
- Doctor: Because I don’t believe it’s medically needed.
- Patient: But you said it is an option for me, and I want it. If you don’t give it to me, I want to see another doctor.
Accordingly, this rule would be unworkable. The plaintiff’s claim that there should have been an admission and consultation is fully presentable through a traditional negligence claim without imposing impractical requirements on doctors.
In part 4, I will then examine the Appellate Court’s ruling on the standard of care applicable to the vascular surgery practice group, and the status of the case on remand.
Other Case
- Collis v. Mid Atlantic Skin Surgery Institute: In a November 6, 2023 unreported opinion, the Appellate Court of Maryland upheld dismissal of an informed consent claim for failure to plead the elements. Plaintiff did not specifically allege that she suffered from the risk not disclosed or that the harm suffered was a result of lack of informed consent.
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