Informed Consent in Maryland: When a Doctor Can Perform a Procedure Properly and Still Be Liable for Failing to Disclose Material Risks and Alternatives
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The general concept
A medical-malpractice claim generally concerns how care was provided: whether the clinician failed to meet the professional standard of care and whether that failure caused injury. An informed-consent claim focuses on what the patient was told before treatment and whether the patient had material information needed to choose. The clinician ordinarily must explain the nature and purpose of the proposed treatment, its material risks, expected benefits, reasonable alternatives, and the option of declining or delaying treatment when appropriate. These claims can overlap: a patient may allege both that treatment was performed negligently and that the patient would have chosen differently if properly informed. A known complication can occur without negligent treatment, but that does not automatically resolve whether the risk was adequately disclosed. Conversely, a careful disclosure does not excuse negligent performance.
How Maryland applies it
Maryland treats lack of informed consent as a negligence claim, with a disclosure duty measured by what is material to the patient’s decision. Under Sard v. Hardy, causation is generally objective: would a reasonable person in the patient’s position have withheld consent if all material risks had been disclosed? The patient must connect the nondisclosure to an injury; it is not enough to show that a risk was omitted if the treatment would have been chosen anyway or the injury did not result from the undisclosed risk. A consent form can be important evidence that particular risks and alternatives were disclosed, but it is not automatically conclusive. Its effect depends on what the form actually says, whether it was completed and discussed before treatment, the patient’s opportunity to ask questions, other statements by the provider, and the evidence about the patient’s decision and resulting injury. A form that clearly identifies the material risk may defeat an informed-consent claim when the evidence leaves no genuine dispute that the patient was adequately informed or that the omission could not have changed the decision. A broad or generic form may not defeat a claim about a material risk it never identifies, especially when the patient offers evidence that the provider made contrary assurances or did not explain the document. And even a detailed form does not release a clinician from using reasonable care during treatment or afterward. If a procedure was performed without consent or went beyond the scope of consent, a separate battery theory may arise depending on the facts. In Maryland, a claim against a health care provider for medical injury generally must be filed with HCADRO; if lack of informed consent is the sole issue, the statute exempts the claim from the usual certificate-of-qualified-expert requirement. When a claim also alleges negligent treatment, the certificate and expert report are generally required for that negligence claim. The ordinary healthcare-malpractice limitation period and other statutory procedures still matter.
Related Maryland Cases and Authorities
Md. Code, Courts & Judicial Proceedings §§ 3-2A-04(b), 5-109.; Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977).; Mahler v. Johns Hopkins Hospital, Inc., 170 Md. App. 293, 907 A.2d 276 (2006).; Landon v. Zorn, 389 Md. 206, 884 A.2d 142 (2005).