Maryland Bar Association Health Care Section: Developments in Informed Consent

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INFORMED CONSENT:

ORIGINS of INFORMED CONSENT

The Common Law:

- Civil and Criminal Battery

Since all established English law as it existed in 1776 was incorporated into Maryland law, it has been a tort for a doctor to perform a procedure, including any examination procedure, without first obtaining the patient’s permission. Battery is an intentional tort and liability for battery subjects a physician to both punitive and compensatory damages and may be excluded from coverage under insurance.

Failure to obtain informed consent is negligence not battery.

- Civil Negligence

Breach of the standard of care compared to breach of the duty to obtain informed consent.

- Breach of the Standard of Care

Failure to provide care consistent with the standard of care that would be provided by a similarly qualified reasonable and prudent provider and resulting injury to the patient.

The standard of care is established by testimony of similarly qualified experts stating their opinion of what a reasonable and prudent doctor would have done or the care that would have been provided given the conditions presented by the patient.

The standard of care may also be established by reference to authoritative treatises, studies, and professional society publications.

- Breach of the Duty to Obtain Informed Consent

Maryland, through the development of its common law, imposes a separate and substantial obligation on doctors to obtain informed consent prior to providing any care to patients.

Please see full presentation below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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