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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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