Med Mal - Cases to Know
In Spar v. Cha, M.D., No. 45S05-0906-CV-273 (Ind. 2009), plaintiff patient brought a medical malpractice claim against defendant doctor after the patient suffered complications and infections following laparoscopic surgery. The Indiana Supreme Court (“ISC”) held, in part, that the defense of incurred risk (assumption of risk) was not and could not be a defense to plaintiff patient’s lack of informed consent claim. In echoing the Indiana Court of Appeals prior decision in this case, the ISC explained that the defense of incurred risk has little to no applicability as a defense to a lack of informed consent claim or a claim of negligent performance of a medical procedure. In Spar, the trial court instructed the jury on the defense of incurred risk. The ISC concluded it was error for the trial court to do so, and it remanded the case for a new trial.
Relating to plaintiff patient’s lack of informed consent claim, the ISC held the trial court did not error in allowing the defendant doctor to introduce evidence that plaintiff patient had been made aware of and consented to the risks of surgery she underwent on prior occasions. Plaintiff patient had undergone previous invasive abdominal surgeries sharing common risks with the laparoscopic surgery she had underwent in the case at hand. In Spar, the ISC concluded that “the jury was entitled to take [plaintiff patient’s] knowledge into consideration when assessing whether she would have declined surgery in light of more comprehensive disclosure.”
