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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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