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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. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

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