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Arrabal v. Crew-Taylor12/3/2004
at the physician knows or ought to know would be significant to a reasonable person who is being asked to decide whether to consent to a particular medical procedure or treatment. The purpose of the required explanation is to enable the patient to make an intelligent and informed choice about whether to undergo the treatment being proposed. A physician is liable for any injury caused by the physician's failure to disclose to the patient a material risk.
The jury was instructed separately as to Questions 1 and 2. Under such circumstances, we are not persuaded that the answers to Questions 1 and 2 might have been different had the court not instructed as to informed consent and had withdrawn Questions 3 and 4.
Appellants contend, in the alternative, that at a minimum a new trial as to damages must be ordered because there is no way to determine what non-economic damages were awarded to Mrs. Crew-Taylor as a result of the lack of informed consent count and what non-economic damages were awarded to her due to Dr. Arrabal's negligent delay in delivering the triplets.
Recently, in Mule v. Jutton, 381 Md. 27, 38-40 (2004), the Court of Appeals made it clear that a claim based on the informed consent doctrine sounds in negligence. Thus, in Count III of their complaint, appellees presented two separate negligence theories to the jury. The first theory was asserted when plaintiffs incorporated by reference into Count III allegations that Dr. Arrabal had deviated from the applicable standard of care by failing to deliver the triplets on October 18 when he first received the "non-reassuring" test results. The second negligence theory set forth in Count III was that Dr. Arrabal had violated Mrs. Crew-Taylor's rights by electing to forego an immediate Caesarian section until October 19 without advising her of the options available (i.e., delivering the babies immediately).
It is oftentimes the case in medical malpractice actions that the plaintiff will have two alternative theories as to why a treating physician is negligent. For example, if a doctor negligently performs an operation and the patient suffers surgical complications due to that negligence and also performs that operation without the patient's informed consent, the patient may proceed on the two negligence theories simultaneously, viz: the theory that plaintiffs suffered injuries because the doctor negligently performed the operation and the alternative theory that, if the defendant had provided the patient with the necessary information prior to surgery, a reasonable patient in the plaintiff's position would have declined the surgery. In the foregoing hypothetical, no matter what theory prevailed, the damages would be the same.
The situation presented in the case at hand is also analogous to one where a plaintiff attempts to prove liability for an automobile accident by contending that the negligent driver was an agent of his parents and contending, in the alternative, that, even if no agency relationship existed, the parents were liable under a theory of negligent entrustment. These are simply two alternative means of proving liability of the parents. But whichever alternative is chosen, the amount of damages will not change.
In the subject case, counsel for the plaintiffs never suggested in their closing arguments that the damages would be any different if liability were founded on the answers to Questions 1 and 2 rather than upon the answers to Questions 3 and 4, which were directed to the lack- of-informed-consent theory. Likewise, the court's instructions contained no such suggestion. Under the lack of informed consent theory, appellees maintained that, if Mrs. Crew-Taylor had been prope
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