ILNews

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. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  2. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  3. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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