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. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  2. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  3. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

  4. I've been denied I appeal court date took a year my court date was Nov 9,2016 and have not received a answer yet

  5. Warsaw indiana dcs lying on our case. We already proved that in our first and most recent court appearance i need people to contact me who have evidence of dcs malpractice please email or facebook nathaniel hollett thank you

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