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Court rules on incurred risk in malpractice suit

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The Indiana Supreme Court ruled today that, in general, incurred risk isn't a defense to medical malpractice based on negligence or lack of informed consent. It also ruled a patient's prior consents to similar surgeries were relevant and admissible at trial.

In Brenda Spar v. Jin S. Cha, M.D., No. 45S05-0906-CV-273, Brenda Spar brought a medical malpractice action against Dr. Jin Cha after she suffered complications from a laparoscopy to determine fertility issues. Spar signed a consent form to "Video Laparoscopy Possible Laparotomy," which stated she had been told risks and benefits and possible complications of the surgery. The morning of her surgery, Cha explained the surgery and possible complications. Cha performed a laparoscopy instead of laparotomy based on comments from Spar prior to surgery.

Spar had previous surgeries to her abdomen following a severe car accident and to remove her gallbladder and gallstones. After the surgery by Cha, she developed post-operative complications and had to have part of her bowel removed during emergency surgery. She was hospitalized for nearly six weeks and developed peritonitis, cysts, and fistulas.

A medical review panel found Cha failed to meet the standard of care and the case proceeded to trial under two theories: negligence in failing to employ alternative diagnostic procedures in lieu of surgery, and failure to obtain Spar's informed consent to the chosen course of treatment.

The trial court admitted evidence by Cha over Spar's objection that he obtained Spar's informed consent for the laparoscopy based on her informed consent to previous surgeries by other doctors. The trial court denied Spar's motion for judgment on the evidence on the issue of incurred risk and gave a jury instruction on it. The jury returned a general verdict in favor of Cha.

On appeal, Spar argued the evidence at trial didn't establish any form of incurred risk as to either her claim for negligent advice or her claim for lack of informed consent. The Supreme Court agreed with the Indiana Court of Appeals that assumption of risk has little legitimate application in the medical malpractice context. A patient is entitled to expect the services will be rendered in accordance with the standard of care, no matter how risky the procedure may be, wrote Justice Theodore Boehm. The disparity in knowledge between professionals and their clients generally precludes recipients from knowing whether a professional's conduct is in fact negligent.

Even if incurred risk is an available defense in some cases, the record in the instant case is devoid of any evidence Spar somehow incurred the risk of negligent care. The doctor's incurred-risk defense to Spar's claim of negligent advice shouldn't have been submitted to the jury.

Incurred risk was also not a defense to Spar's lack-of-informed-consent claim. A waiver of informed consent doesn't assume risks associated with negligent performance of the underlying procedure or treatment, the justice wrote. And, there's no evidence Spar waived her right to informed consent or otherwise assumed risks related to negligent nondisclosure. The Supreme Court reversed and remanded for a new trial.

The justices also determined the trial court properly admitted evidence of Spar's consent to prior surgeries by other doctors.

"If Spar had been made aware of typical complications by Dr. McKinnon and Dr. Shabeeb and already had a thorough appreciation of the common risks from invasive abdominal procedures, the jury was entitled to take her knowledge into consideration when assessing whether she would have declined surgery in light of more comprehensive disclosure," wrote Justice Boehm.

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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