ILNews

Incurred risk not malpractice defense

Jennifer Nelson
January 1, 2008
Back to TopCommentsE-mailPrintBookmark and Share
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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT