In most cases, a claim for medical malpractice and a claim for breach of informed consent need to be pleaded separately. This is because they are separate theories of liability. However, in a recently decided medical malpractice case in Maryland, the plaintiffs introduced evidence of a breach of informed consent, but they had only pleaded a medical malpractice claim. The trial court ruled in favor of the plaintiffs, a decision that was appealed by the defendants. The appellate court held that the trial court had not erred in allowing the plaintiffs to introduced evidence of informed consent despite not having pleaded it. Learn what happened in this case in our blog.
The case concerned the alleged wrongful death of a woman who was admitted to the emergency room of the defendant hospital on February 12, 2010. She was suffering for decubitis ulcers on her buttocks, as well as a number of other health concerns including multiple sclerosis, osteomyelitis (bone inflammation), loss of bladder control, and chronic obstructive pulmonary disorder.
She was hospitalized for 2 ½ weeks and received treatment that included antibiotics and narcotic painkillers. "On the afternoon of February 26, 2010, the defendant hospital informed her family that the prognosis was poor and that she was a candidate for hospice care. Later that day, the decedent's doctors initiated hospice care by discontinuing her antibiotics and administering increased doses of painkillers (the family denied that they consented to the change to hospice care). The decedent died on March 1, 2010," according to medicalmalpracticelawyers.com.
The family of the decendent woman filed a wrongful death suit against the hospital, in which the alleged that the hospital had breached the standard of care when they upper her dosage of narcotice pain fillers, and action which they further alleged contributed to her death.
The trial jury returned a verdict in favor of the plaintiffs. The defendant hospital appealed on a number of issues. One of the appeals was that the trial court should not have allowed the plaintiffs to introduce informed consent testimony when they had not pleaded an informed consent claim.
The informed consent testimony was that the family alleged they had not been notified by the hospital that the decedent’s care had been changed to hospice care. Their wrongful death medical malpractice claim was that the doses of medication that were administered to the decedent were excessive for a patient who was not in hospice care, and therefore the standard of care had been breached.
The Maryland appellate court found that the informed consent evidence the plaintiffs supplied was relevant because it helped them establish their medical malpractice claim and the applicable standard of care. The evidence had not been presented on its own as an informed consent claim, thus the defendant hospital’s argument that it should not have been allowed was invalid.
"The Appellate Court stated that nothing in its prior cases would prohibit evidence of a patient's lack of consent to treatment in a medical malpractice case when that lack of consent is relevant to prove an element of the medical malpractice claim.”