Steffany K. Bender, Esq. Morgan Carlo Downs & Everton, P.A.

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1 Steffany K. Bender, Esq. Morgan Carlo Downs & Everton, P.A.

2 The doctrine of informed consent imposes upon a physician the duty to explain the procedure to the patient and warn of any material risks so as to enable the patient to make an intelligent and informed choice about whether to undergo such treatment. Sard v. Hardy, 281 Md. 432 (1977)

3 Doctrine is founded upon notion that every patient has a right to control what happens to his or her own body. A physician who is treating a mentally competent adult patient, under nonemergency circumstances, cannot administer treatment or perform surgery without first obtaining consent of the patient. Sard v. Hardy, 281 Md. 432 (1977)

4 The doctrine of informed consent applies to treatment that is contemplated; it does not apply to treatment that is not contemplated. Reed v. Campagnolo, 332 Md. 226 (1993)

5 1. Nature of the Ailment 2. Nature of Proposed Treatment 3. Probability of Success of Treatment 4. Alternative Methods of Treatment 5. Risk of Failure or Unfortunate Side Effects 6. Any other factor that a reasonable patient would consider material in making a decision to undergo the treatment

6 The scope of the physician s communication to the patient is measured by the patient s need for the information. The patient s need for information is measured by the reasonable person standard. The physician may not substitute his or her independent judgment as to what the patient should know.

7 A Material Risk is one which the physician knows or should know is significant to a reasonable person in the patient s position in deciding whether or not to submit to a particular medical treatment or procedure.

8 There is no bright line test for determining the scope of the disclosure required for any given treatment. The physician does not need to deliver a mini course in medical science. The measure of disclosure is dependent upon each patient s need.

9 Action for Failure to Obtain Informed Consent is not the same as Claim of Negligence for Breach from Accepted Standards of Care A Claim for Failure to Obtain Informed Consent focuses on the adequacy of the explanation given by the physician in obtaining the patient s consent, NOT on the level of skill exercised in the performance of the procedure itself. Dingle v. Berlin, 358 Md. 354 (2000)

10 Once the risks and non-disclosure of those risks have been outlined, the jury must determine whether the risks in question were material, and if so, whether a reasonable person in the patient s position would have withheld consent to the surgery or therapy if the risks had been disclosed. Mahler v. Johns Hopkins Hospital, Inc. 170 Md. App. 293, 319 (citations omitted), cert denied, 296 Md 13 (2006)

11 Jury applies an objective test using the reasonable person standard. Patient must establish that consent would NOT have been given if all of the material risks had been disclosed No need to establish scope of the physician s duty by expert medical testimony

12 Health Care Decisions Act Allows for the making of an advance health care directive by a competent individual regarding the provision, withholding or withdrawal of health care OR Appointing a health care agent (Power of Attorney) to make health care decisions for the individual Md Code, Health General Article, through 5-626

13 Advance Directive/Power of Attorney = a witnessed written or electronic document which is voluntarily executed by the declarant OR a witnessed oral statement made by the declarant Health Care Agent = an adult appointed by the declarant under an advance to make health care decisions for the declarant Attending physician = the physician who has primary responsibility for the care and treatment of the patient

14 A Power of Attorney becomes effective only when the declarant s attending physician and a second physician certify in writing that the patient is incapable of making an informed decision regarding his/her health care. (If patient is unconscious or unable to communicate by any means, the certification of a second physician is not required.) Md. Code, Health General, 5-602(e)

15 A written power of attorney must be: 1. Dated 2. Signed by or at the express direction of the declarant 3. Subscribed by two (2) witnesses Md. Code, Health General, 5-602(c)(1)

16 An oral power of attorney has same effect as written directive IF: 1. Made in presence of attending physician or nurse practitioner and one witness AND 2. The substance is documented as part of patient s medical record. Md. Code, Health General, 5-602(d)(2)

17 An owner, operator or employee of a health care facility from which the individual is receiving health care may not serve as a health care agent for the patient unless that person would qualify as a surrogate decision maker Md. Code, Health General, 5-602(b)

18 Any competent individual may serve as a witness to a power of attorney, including an employee of a health care facility, nurse practitioner, or physician caring for the declarant if acting in good faith Health care agent of the declarant may NOT serve as a witness At least one witness must not be knowingly entitled to financial benefit by reason of death of declarant Md. Code, Health General, 5-602(c)(2)

19 Suggested forms are provided by the Md. Code, Health General Article; however, use of those forms is NOT required.

20 A valid living will or durable power of attorney for health care made prior to October 1, 1993 will be given full force and effect even if not executed in accordance with the terms of the Health Care Decisions Act Md. Code, Health General, 5-614(d) and 5-616

21 A power of attorney executed in another state will be deemed to be validly executed if executed in compliance with Maryland law or the law of the state where executed. Such a power of attorney will be construed to give effect to the patient s wishes to the extent permitted by Maryland law.

22 An attending physician who is notified of the existence of a written power of attorney must promptly make the document part of the patient s medical records.

23 A power of attorney may be revoked at any time by a declarant by a signed and dated writing, by physical cancellation or destruction, by an oral statement to a health care practitioner, or by the execution of a subsequent directive. If a declarant revokes a power of attorney by an oral statement to a health care practitioner, the practitioner and a witness to the oral revocation shall document the substance of the oral revocation in the declarant s medical record.

24 When a person who has not appointed a health care agent under the Health Care Decisions Act is certified to be incapable of making an informed decision about health care, the following individuals in order of priority may make decisions for that individual s health care 1. Guardian (if one has been appointed) 2. Spouse 3. Adult Child 4. Parent of the patient 5. Adult brother or sister 6. Friend or other relative Md. Code, Health General, 5-605(b)

25 If there is a dispute between surrogates with equal priority, and person is in hospital or related institution, the physician must refer the case to the institution s patient care advisory committee and may act in accordance with the recommendation of the committee or transfer the patient. Md. Code, Health General, 5-605(b)(1)

26 If the patient is not in a hospital or related institution, a physician may not withhold or withdraw life-sustaining procedures if there is not agreement among all the surrogates in the same class. Md. Code, Health General, 5-605(b)(2)

27 A health care provider is not subject to criminal prosecution or civil liability or deemed to have engaged in unprofessional conduct as determined by the appropriate licensing authority as a result of withholding or withdrawing health care under authorization obtained in accordance with the Health Care Decisions Act. Md. Code, Health General, 5-609

28 For additional information or questions, please contact me: Steffany K. Bender, Esq. Morgan Carlo Downs & Everton, P.A. Executive Plaza IV, Suite McCormick Road Hunt Valley, Maryland (410)

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