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Landon v. Zorn10/6/2005
dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment.
Sard, 281 Md. at 439, 379 A.2d at 1020. The doctrine, we noted, "follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient." Sard, 281 Md. at 438-39, 379 A.2d at 1019. Subsequently, in Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993), we noted that "one's informed consent must be to some treatment." Reed, 332 Md. at 241, 630 A.2d at 1152. We cited with approval a number of New York cases that stand for the proposition that "`a 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.'" Reed, 332 Md. at 242, 630 A.2d at 1153 (internal citation omitted). See also Arrabal v. Crew-Taylor, 159 Md. App. 668, 862 A.2d 431 (2004) (holding that the physician's "decision to take no affirmative action may have amounted to a violation of the professional standard of care, but [the physician] was not obligated to obtain his patient's consent to his non-action").
The Landons contend that Dr. Zorn was negligent in failing to inform Mr. Landon of the risk associated with not having a CAT scan. We find this argument unpersuasive. First, as stated previously, "a 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." There was no evidence presented, to support a conclusion that Dr. Zorn committed any affirmative action in violation of Mr. Landon's physical integrity. Dr. Zorn recommended a diagnostic test, and Mr. Landon refused to submit to that test. The Landons' theory of liability, however, are premised upon what Dr. Zorn allegedly failed to do in her treatment of Mr. Landon. Assuming for the sake of argument that Dr. Zorn's failure to inform constituted an affirmative act, the Landons, however, failed to present any expert opinion testimony to establish that the professional standard of care required that Dr. Zorn inform Mr. Landon of the risks associated with not submitting to a CAT scan. Moreover, the Landons have not directed this court to any case holding that it is a breach of the standard of care for a doctor to fail to disclose those risks. Accordingly, the Landons were not entitled to an informed consent instruction and the trial court did not err in refusing to give the requested instruction.
JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.
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