New Maryland Med Mal Opinion | Informed Consent and Apparent Agency

U.S. District of Judge Richard D. Bennett issued an opinion Monday in Robertson v. Iuliano, an informed consent medical malpractice lawsuit against a neurosurgeon and St. Agnes Hospital.

medical malpractice opinion

New Opinion on Apparent Agency and Informed Consent Law in Maryland

The first question you might have is how this malpractice case ended up in federal court instead of Baltimore City Circuit Court, where the claim was filed? Good question, my dear reader. Only a crazy plaintiffs’ med mal lawyer would file in federal court over Baltimore City because Baltimore is just a much better venue.

So what gives? Apparently, after committing an alleged tort in Baltimore City, the doctor moved to Virginia. It seems odd – in fact, crazy – to me that a defendant who commits a tort in Maryland could avail themselves of removal by moving away after the fact. But, in an earlier opinion, the court opined that the plain meaning of the removal statute mandated federal jurisdiction. It is a silly law, but it is the law.

Facts of Robertson v. Iuliano

Anyway, I know little about the underlying facts. But the case sounds weak to me. The plaintiff claims he would not have undergone back surgery to repair a disc at L4-L5. He suffered from moving a dryer for a customer while working at Lowe’s Home Improvement had he known that he might get an infection from the surgery.

St. Agnes and Neurosurgery Services, LLC and St. Agnes Healthcare, Inc. were also sued. Still, the court ruled in their favor and found that they could not be held liable for Dr. Iuliano’s actions because they were not responsible for ensuring their doctors adequately informed their patients of the risk and because there was no actual or apparent agency. The court dismissed the informed consent argument because Maryland law is clear that the duty to obtain informed consent is the doctor’s job. There is no duty to the patient from the hospital unless they “specifically assumed the duty.” I’m not sure why this would be the law. But it is.

Efforts to Amend Complaint Failed

Before the trial, Robertson filed a motion to amend his complaint to clarify that the lack of informed consent included the failure to disclose alternative forms of treatment. He also wanted to increase the amount stated in his complaint. However, the court has denied his motion to amend the complaint.

Why?  According to the Federal Rules of Civil Procedure, an amendment to a pleading should only be denied if it would cause prejudice to the opposing party, there was bad faith on the part of the person making the amendment, or if the amendment would be considered futile. The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule to mean that amendments should be freely allowed as long as justice requires it.

The court agrees with this but says there are limits.  The judge underscored that the deadline to amend the pleadings had already passed and that to be approved, the amendment must satisfy both the “good cause” standard and the standard set by Rule 15(a)(2) of the Rules of Civil Procedure. The court found that Robertson did not satisfy the “good cause” standard and determined that the amendment would be prejudicial to the doctor. The court concluded that allowing the amendment on the eve of a trial would be unfair to the doctor because discovery has been conducted concerning informing the plaintiff of alternative treatment methods. The amendment would essentially add a new claim to the complaint. So that makes sense.

Apparent Agency Is a No Go

The plaintiff also argued that the doctor was an agent of the hospital. But there was no actual agency – he was a doctor with privileges – and the plaintiff stated that he believed that doctors were self-employed.

The case has an excellent overview of Maryland law on informed consent and apparent agency.

Informed Consent Law in Maryland

Informed consent is a legal and ethical concept in the medical field that requires healthcare providers to obtain permission from a patient before providing treatment or procedures. In Maryland, informed consent laws require healthcare providers to give patients adequate information about their medical treatment options, the risks and benefits of each option, and to obtain the patient’s agreement to undergo the chosen treatment.

Under Maryland law, the doctrine of informed consent flows from the long-established rule that a doctor “cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient.”  For the patient’s consent to be effective and informed,  the patient must receive a fair and reasonable explanation of the contemplated treatment or procedure from the physician.  The doctor has to spell out the procedure or therapy to the patient for the patient and warn her of any material risks or dangers inherent in or collateral to the therapy.  This allows the patient to make an intelligent and informed choice about whether to undergo the suggested medical care.

If a healthcare provider fails to obtain informed consent, the patient may have the right to file a medical malpractice lawsuit. Additionally, healthcare providers who fail to obtain informed consent may face disciplinary action from state medical boards or other regulatory agencies.

What Is the Purpose of the Informed Consent Doctrine in Maryland?

The purpose of the informed consent doctrine in Maryland is to preserve patient autonomy in their own healthcare decisions. The Maryland Court of Appeals tells us that the doctrine’s paramount purpose is to “vindicate the patient’s right to determine what shall be done with his own body and when.” Informed consent’s “fountainhead … is the patient’s right to exercise control” over her own body by deciding for herself whether to get the therapy or procedure.”

So to protect patients that “right to exercise control” over their own bodies, Maryland law requires doctors to disclose to the patient all reasonably available treatment alternatives and their attendant risks.

Informed Consent Is Ongoing

It is important to remember that informed consent is not a one-time event. It is an ongoing process that continues throughout treatment. Healthcare providers in Maryland must keep the patient informed of any changes in their condition and continue to obtain the patient’s agreement to any changes in treatment plans.

What Are the Elements of Informed Consent in Maryland?

The Maryland Court of Special Appeals has delineated the elements of the informed consent cause of action:

For a complainant to establish a prima facie case of failure to obtain informed consent, the complainant must illustrate (1) existence of a material risk, which the physician must explain to the patient; (2) the failure of the physician to inform the patient of the material risk; (3) the physician knew or ought to have known of the material risk; and (4) a causal connection between the lack of informed consent and the harm.

Do you need an expert to bring an informed consent claim in Maryland?  Yes and no.  An informed consent claim is ultimately a two-step process: (1) whether the material risks to a particular treatment or therapy were disclosed, and (2) whether a reasonable patient would have withheld consent upon being informed of the material risks of the treatment or therapy.

The latter component does not require an expert.  You don’t need an expert to tell a jury what a reasonable patient should think.  We are all patients ourselves, so we are all experts on this issue.  But whether a risk is material is often a question for expert testimony.  Often, you can also get this same testimony from the defense experts or the defendant.

Apparent Agency Law in Maryland

Apparent agency is a legal concept in the state of Maryland that refers to a situation in which a person (the principal) gives the impression to others (the third parties) that another person (the agent) has the authority to act on their behalf. This can happen through the principal’s conduct, words, or appearance, and it creates a relationship of agency between the principal and the third parties, even though there may not be an actual agreement or agency relationship between the principal and the agent.

Under Maryland law, an apparent agency can be established in several ways, including holding the agent out as having authority, failing to correct a third party’s belief that the agent has authority, or by the way in which the principal’s business is conducted.

The concept of apparent agency is important in Maryland because it can create legal liabilities for the principal. For example, if a third party relies on the apparent authority of an agent and suffers harm as a result, they may be able to hold the principal liable for the actions of the agent.

In order to determine whether an apparent agency exists in a given situation, the courts in Maryland will consider several factors, including the principal’s conduct, the relationship between the principal and the agent, and the third party’s reliance on the agent’s apparent authority.


As one reader pointed out, there was also a claim against the incorporated medical practice itself. I know and that part of the opinion was also interesting — and a little disconcerting. But I can’t break down every element of these holdings and still hold down my full-time job!

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