Incurred risk not malpractice defense

Jennifer Nelson
January 1, 2008
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A doctor cannot use evidence of a patient's previous surgeries or pursue an incurred-risk defense against a medical malpractice suit, the Court of Appeals ruled today.

In Brenda Spar v. Jin S. Cha, M.D., No. 45A05-0611-CV-683, Spar appealed the jury decision in favor of Dr. Cha in her medical malpractice claim against the OB/GYN for a surgery he performed on her.

Spar previously had been in a serious automobile accident and as a result had numerous abdominal surgeries. When she decided to have a baby, she went to Cha who recommended a diagnostic laparoscopy to examine her fallopian tubes. Spar scheduled the surgery and was given a consent form the day of the surgery. As she was wheeled into the operating room, Cha discussed the procedure with her.

Three days later Spar became ill. Her bowel had been perforated during the surgery, resulting in a serious infection. Spar filed a proposed complaint with the Indiana Department of Insurance.

At trial, Spar argued Cha's treatment was negligent and he failed to obtain her informed consent. Part of Cha's defense was evidence of Spar's consent to previous surgeries, which Spar asked the trial court to exclude. The trial court allowed the evidence.

Members of the medical review panel that had previously viewed the case testified the doctor should not have performed the laparoscopy because of Spar's scaring and that Cha failed to obtain her informed consent. Cha's defense was that Spar was aware of the risks of the surgery because of her previous surgeries.

Judge Melissa May wrote that to allow a doctor to use the defense of incurred risk to defeat a claim that the doctor failed to obtain a patient's informed consent "would undermine the policy promoted by the doctrine of informed consent" because physicians have a duty to make a reasonable disclosure of material facts relevant to a decision the patient must make. A layperson will not know all of the necessary medical facts and risks as a doctor does. The trial court erred in allowing Cha to use the defense of incurred risk to avoid a negligence claim.

The trial court also erred when it allowed evidence of Spar's consent to previous surgeries. Cha believed the evidence showed Spar was aware of the risks of abdominal surgery and therefore incurred those risks. Because the incurred risk defense is not allowed in this case, the evidence should not have been allowed, wrote Judge May. The risks of each medical procedure vary, and the patient has the right to be told about those risks.

"To permit (Spar's) consent to prior surgeries to be used to negate proximate cause binds Spar to her previous decisions regarding unrelated surgeries and denies her the opportunity to make a choice based on the particular facts surrounding the laparoscopy," she wrote.

The Court of Appeals remanded for a new trial.

Judge Carr Darden dissented in a separate opinion, stating he agreed with the trial court that incurred risk should be an available defense for the doctor. Evidence of Spar's consent to previous abdominal surgeries was relevant to Cha's defense and should be admissible.

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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

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