 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Arrabal v. Crew-Taylor12/3/2004
f care.
Sard, 281 Md. at 443-44 (citations omitted) (emphasis added).
In Reed v. Campagnolo, the Court of Appeals was required to address two certified issues submitted to it by the United States District Court of Maryland. One of the certified issues was:
Whether the continuation of a pregnancy is a decision requiring the informed consent of the patient . . . when the allegedly negligent course of treatment is the defendant physician's failure to inform a pregnancy patient about the availability, risks and benefits of diagnostic testing which might reveal birth defects, and failure to inform the patient about the benefits and risks associated with aborting a severely deformed fetus.
Reed, 332 Md. at 228.
The Reed Court answered the question quoted above in the negative. In Reed, it was alleged that the defendants failed in the course of providing pre-natal care to inform the plaintiffs of the existence of, or need for, an à-fetoprotein (AFP) blood test. According to the plaintiffs, administration of the AFP test would have revealed the need for an amniocentesis, which, in turn, would have revealed the extent of the defects of the fetus. Plaintiffs further alleged that they would have chosen to terminate the life of the fetus had they known of the defects. A child was born to the Reeds with very serious abnormalities. Id. at 230.
Holding that an action for lack of informed consent would not lie under the facts of that case, the Reed Court said:
The Reeds, emphasizing that they were not told by the defendants about AFP and amniocentesis tests, say that they lacked informed consent. But one's informed consent must be to some treatment. Here, the defendants never proposed that the tests be done. Whether the defendants had a duty to offer or recommend the tests is analyzed in relation to the professional standard of care. Application of that standard may or may not produce a result identical with the informed consent criterion of what reasonable persons, in the same circumstances as the Reeds, would want to know.
Id. at 241 (emphasis added).
In reaching its decision, the Court noted that in Sard the Court spoke "of promoting 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." Reed, 332 Md. at 242 (quoting Sard, 281 Md. at 444).
In Reed, the Court ruled that, for the doctrine of informed consent to be applicable, the doctor must fail to explain the pros and cons of some affirmative violation of the patient's physical integrity, such as performing surgery or injecting the patient.
The commentators similarly speak of informed consent in the context of a doctor's affirmative act. See F. Harper, E. James & O. Gray, The Law of Torts § 17.1, at 562 (2d ed. 1986); W.P. Keeton, Prosser & Keeton on the Law of Torts § 32, at 189-90 (5th ed. 1984); M. Shiffman, Medical Malpractice: Handling General Surgery Cases § 1.21, at 21-22 (1990); 4 S. Speiser, C. Krause & A. Gans, The American Law of Torts § 15:71, at 635 (1987); M. McCafferty & S. Meyer, Medical Malpractice Bases of Liability, ch. 11 (1985).
New York courts have held that to state a cause of action in informed consent requires an affirmative act by the doctor. In Karlsons v. Guerinot, 57 A.D.2d 73, 394 N.Y.S.2d 933 (N.Y.App.Div.1977), the plaintiffs contended that the defendant doctors' failure to inform the plaintiffs of the risks involved with the mother's pregnancy, including the risk that she would give birth to a deformed child, gave rise to "a cause of action for failure to obtain an informed
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Maryland Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|