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Landon v. Zorn10/6/2005
risks of medication or evaluate whether the prescribed course of treatment is in her best interest. As a consequence, it is not contributory negligence for a patient to follow a doctor's instructions or rely on the doctor's advice, to fail to consult another doctor when the patient has no reason to believe that the doctor's negligence has caused her injury, or to fail to diagnose her own illness.
DiLeo, 88 Md. App. at 73, 592 A.2d at 1133. DiLeo and Hill, which cited DiLeo, support the third paragraph of the Landons' requested instruction. They do not, however, support the fourth requested paragraph and the Landons direct us to no other case law to support the proposition. Nevertheless, assuming arguendo, that the special instruction was a correct statement of the law, we would still affirm the trial court's decision because the Landons can show no prejudice by the failure of the court to give the requested instruction.
The Landons, as the complaining party, have the burden of showing both prejudice and error. Farley, 355 Md. at 47, 733 A.2d at 1020. In the present case, the jury was presented with a special verdict sheet. The first question on the sheet stated:
1. Do you find that Plaintiffs have proven by the preponderance of evidence that Dr. Zorn breached the standard of the care of a reasonably competent emergency medicine physician?
The jury answered "No" to the question. The verdict sheet instructed the jury that if the answer to the first question was "No," they were to go no further. Consequently, the jury did not reach any of the remaining questions, including the one regarding contributory negligence. The Landons, therefore, can show no prejudice as a result of the court's denial to give the requested instruction. The trial court's decision not to give the requested instruction is affirmed.
d. Informed Consent
The Landons also challenge the trial court's refusal to give MPJI-Cv 27:4 pertaining to informed consent. The Landons argue that "[Mr. Landon] was never advised of any potential risks of his refusing the CAT scan. More specifically, [Mr. Landon] was never advised that failure to submit to the CAT scan could have life-threatening consequences for him." His argument continues, "Dr. Zorn was unable to inform Mr. Landon as to what, if any, risks Mr. Landon would face by not having the CAT scan done. He was therefore unable to make an informed choice as to whether or not he should have the CAT scan done."
Dr. Zorn responds that the issue of informed consent was not pled. She cites the case of Zeller v. Greater Baltimore Medical Center, 67 Md. App. 75, 506 A.2d 646 (1986), for the proposition that "where there is no properly [pled] claim for lack of informed consent, and no attempt to amend the pleadings during trial, a trial court may properly deny a requested jury instruction on that topic." Dr. Zorn also argues that, even if the lack of informed consent argument had been properly pled, the trial court was correct in denying to give the instruction because the evidence adduced at trial did not support a claim for informed consent.
In Maryland, a cause of action for lack of informed consent must be based on a failure of a physician in a non-emergency situation to get consent from a patient prior to performing an affirmative act on the patient. The seminal case in Maryland regarding the doctrine of informed consent is Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). In Sard we stated that,
the doctrine of informed consent imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn him of any material risks or
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