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Arrabal v. Crew-Taylor12/3/2004
consent to continuation of the pregnancy and to the final delivery." Id. at 81, 394 N.Y.S.2d at 938. The court held:
" cause of action based upon [the doctrine of informed consent] exists only where the injury suffered arises from an affirmative violation of the patient's physical integrity and, where nondisclosure of risks is concerned, these risks are directly related to such affirmative treatment. Here, the resultant harm did not arise out of any affirmative violation of the mother's physical integrity. Furthermore, the alleged undisclosed risks did not relate to any affirmative treatment but rather to the condition of pregnancy itself. Allegations such as these have traditionally formed the basis of actions in medical malpractice and not informed consent."
Id. at 82, 394 N.Y.S.2d at 939 (citation omitted); see also Keselman v. Kingsboro Medical Group, 156 A.D.2d 334, 335, 548 N.Y.S.2d 287, 288-89 (1989); Etkin v. Marcus, 74 A.D.2d 633, 633, 425 N.Y.S.2d 165, 165-66 (1980).
Karlsons was applied to the facts in Pratt v. University of Minn. Affiliated Hosps. & Clinics, 414 N.W.2d 399 (Minn. 1987). There parents sought genetic testing because the third of their three children suffered from multiple, congenital abnormalities. The defendants non-negligently advised the parents "that their chance of conceiving another child with birth defects were about the same as parents in general." 414 N.W.2d at 400. Thereafter the plaintiffs had their fourth child who also suffered from birth defects. It was held that there was no liability on a theory of negligent nondisclosure for failure to advise of alternate possible causes of the third child's anomalies so that the parents "could make an informed decision on whether to conceive another child." Id. at 401.
Reed, 332 Md. at 242-43 (emphasis added).
As can be seen from a review of the portion of Count III quoted supra, the gravamen of those allegations was that Dr. Arrabal never obtained Mrs. Crew-Taylor's consent prior to making his decision not to perform an immediate Caesarian section. Just as the defendant in Reed never proposed to give a test, here, Dr. Arrabal never proposed to give Mrs. Crew-Taylor an emergency Caesarian section on October 18. Thus, the harm alleged (Che's death) "did not arise out of any affirmative violations of [Mrs. Crew-Taylor's] physical integrity." Reed, 332 Md. at 242 (quoting Karlsons v. Guerinot, 57 A.D. 2d 73, 394 N.Y.S. 2d 933 (N.Y. App. Div. 1977)). Dr. Arrabal's decision to take no affirmative action may have amounted to a violation of the professional standard of care, but he was not obliged to obtain his patient's consent to his non- action. We therefore hold that the trial court erred in denying appellants' motion for judgment as to the lack-of-informed-consent portion of plaintiffs' case.
B. Question 2
The second question assumes that we disagree with appellants' contention that the judge should not have allowed the jury to consider the lack of informed consent theory. Because we agree with appellants in this regard, we need not answer Question 2.
C. Question 3
To succeed on appeal in a civil case, the burden is on the appellant to demonstrate not only that error was committed but to demonstrate, as well, how he or she was prejudiced by that error. Crane v. Dunn, 382 Md. 83, 91 (2004). Here, the question is not whether the court erred in admitting evidence concerning the lack of informed consent issue. That evidence came in without objection. Instead, the error complained about is the trial judge's failure to grant judgment in favor of appellants as to the lack of informed consent theory. The issue becomes: How w
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