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Arrabal v. Crew-Taylor12/3/2004
jury's award to account for payments made?
7. Did the trial court err in denying appellants' post-trial motions on the grounds that the verdict was excessive, improperly based on sympathy, and the product of confusion and erroneous jury instructions?
A. Question 1
At the conclusion of the entire case, counsel for appellants made a motion for judgment as to the portion of plaintiffs' claim alleging lack of informed consent. Defense counsel maintained that a lack of informed consent action must be predicated "on the failure [of the health care provider] to advise [the patient] of material risks," but that duty applied only when the provider plans to provide affirmative treatment affecting the physical integrity of the patient. Counsel for the movants also contended that, although failing to deliver the triplets on October 18 might (at least arguably) constitute a negligent breach of the expected professional standard of care, failure to explain the pros and cons of taking no immediate action would not suffice to support an action for lack of informed consent. In support of their motion, defendants relied principally on the cases of Reed v. Campagnolo, 332 Md. 226 (1993), and Sard v. Hardy, 281 Md. 432 (1977).
The first case in Maryland to recognize a cause of action for lack of informed consent was Sard. Mrs. Sard, who was pregnant for the third time, wanted to deliver her third child but selected sterilization from among the options her doctor gave her in order to fulfill her wish of never becoming pregnant again. 281 Md. at 436. While delivering her third child by Caesarian section, Dr. Erving Hardy performed a bilateral tubal ligation. Id. After Mrs. Sard became pregnant for the fourth time, she and her husband sued Dr. Hardy, claiming, inter alia, that Dr. Hardy had failed to advise them that the surgical procedure was not absolutely certain to prevent future pregnancies. The Sards also alleged that the doctor had failed to discuss with them alternative methods of sterilization. At the close of the Sards' case, the trial court directed a verdict in favor of Dr. Hardy as to all counts. The Court of Appeals reversed and held that the evidence was sufficient to warrant submitting to the jury the question of whether the information withheld by the doctor was material to Mrs. Sard's decision to have the bilateral tubal ligation.
The Sard Court said:
he physician's duty to disclose risk information is whether such data will be material to the patient's decision:
"The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever is material to the decision. Thus, the test for determining whether a potential peril must be divulged is its materiality to the patient's decision." Cobbs v. Grant, 502 P.2d at 11.
By focusing on the patient's need to obtain information pertinent to the proposed surgery or therapy, the materiality test promotes the paramount purpose of the informed consent doctrine - to vindicate the patient's right to determine what shall be done with his own body and when.
We hold, therefore, that the scope of the physician's duty to inform is to be measured by the materiality of the information to the decision of the patient. A material risk is one which a physician knows or ought to know would be significant to a reasonable person in the patient's position in deciding whether or not to submit to a particular medical treatment or procedure. Whether a physician has fulfilled his duty to disclose, then, is to be determined by reference to a general standard of reasonable conduct and is not measured by a professional standard o
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