“I Would Never Have Agreed”: Why a Patient’s Intention Is Not the Only Question in “Informed Consent” Claims
Published .
Why “I Would Never Have Agreed” Is Not the Whole Test
In a Maryland informed-consent claim, a patient’s statement—“I would never have agreed”—can be relevant, but it does not by itself establish legal causation. Maryland uses an objective, patient-focused test: would a reasonable person in this patient’s position have declined the treatment if the material risks had been disclosed? The question protects the patient’s right to make an informed choice while asking the fact finder to assess causation from the circumstances, not hindsight alone.
Maryland’s “Reasonable Patient” Causation Rule
The provider’s disclosure duty concerns information a reasonable person in the patient’s position would consider significant when deciding whether to undergo or continue a proposed treatment. A patient’s particular circumstances matter to that assessment. But for causation, the jury does not simply decide whether this patient now says they personally would have refused. It considers whether a reasonable person in that position, fully informed of material risks, would have withheld consent. The patient may testify about their values, concerns, and decision-making; that testimony can inform the analysis, but it is not controlling by itself.
Why the Law Looks Beyond Hindsight
Maryland adopted an objective standard in Sard v. Hardy, reasoning that a later claim of what someone would have chosen can be affected by the fact that the undisclosed risk actually occurred. The objective test helps limit hindsight bias and asks whether the missing information could have changed the treatment decision for a reasonable patient with the relevant circumstances. In Goldberg v. Boone and again in Doctor’s Weight Loss Centers, Inc. v. Blackston, the Supreme Court of Maryland reaffirmed that causation asks whether a reasonable person in the patient’s position would have withheld consent if all material risks had been disclosed.
The Patient’s “Choice” Still Matters
The objective test does not erase personal autonomy or make the patient’s perspective irrelevant. It frames the causation question after the claimant establishes a duty to disclose material information, inadequate disclosure, and injury proximately caused by the failure to disclose. A claim about how a procedure was performed is analytically different from a claim that material information was not disclosed. A signed form may be evidence of what was discussed, but the legal question depends on the specific information communicated, its materiality, and the surrounding circumstances—not the signature alone.
“Evidence” That Can Help Answer the Question
Evidence can include the proposed treatment and alternatives; the risk that later occurred; the patient’s health, goals, and circumstances at the time; what the provider knew or should have known; records of discussions and consent forms; and testimony about what a reasonable person in the patient’s position would have decided if informed. Expert evidence may be needed on clinical risks, alternatives, or causation, while the jury decides disputed facts under the court’s instructions. A poor outcome alone does not prove a failure to obtain informed consent.
Related Maryland Cases and Authorities
Sard v. Hardy, 281 Md. 432, 444, 450 (1977); Goldberg v. Boone, 396 Md. 94, 128–30 (2006); McQuitty v. Spangler, 410 Md. 1, 18–19 (2009); Doctor’s Weight Loss Centers, Inc. v. Blackston, 487 Md. 476 (2024).