In medical malpractice cases, doctors often want to explicitly or implicitly argue that there is informed consent of a risk of an injury and that injuries can occur, therefore, there can be no malpractice claim because the patient was informed of the risks. The strategy is to convince the jurors that the injuries were the expected consequences of the treatment or surgery and since the patient accepted those consequences, there is no malpractice.
This logic fails. While I am aware of the risk of driving down the street, I can still bring a negligence claim if someone runs a stop sign and hits me. Few Maryland judges are going to allow doctors to make this argument directly in medical malpractice cases. But doctors’ lawyers also want to make this argument indirectly by just asking plaintiffs on cross examination about the informed consent document they executed. Some jurors, particularly those that are inclined to be predisposed toward the doctor, may conclude that consent to the surgery is fundamentally the same as consent to the injury which resulted from the surgery, essentially finding that informed consent acts as some sort of waiver.
This raises the question of whether evidence that a patient signed an informed consent is admissible in malpractice cases where informed consent is not at issue. Our malpractice lawyers recently fought this issue, filing a motion in limine. We won the motion and the trial. You can find the motion in limine on this issue on our website.