Chapter 3.C.3 (2.B.3) Limiting Liability for Failure to Disclose

Notes: Competing Disclosure Standards

Note 5. Forms and Assumption of Risk.

The Indiana Supreme Court recently addressed the issue of assumption of risk in Spar v. Cha, 907 N.E.2d 974 (Ind. 2009). The case involved a laparoscopy performed on a woman who had extensive scarring to her abdominal tissue. Prior to surgery, Spar signed a consent form that stated that the “nature, purpose and possible complications of the procedure(s) and medical services described above, the risks and benefits reasonably to be expected, and the alternative methods of treatments have been explained to me by a physician, and I understand the explanation I have received.” Id. at 977.The laparoscopy was complicated by Spar’s scar tissue and she suffered a perforated bowel requiring additional surgery. Spar brought traditional negligence and informed consent actions against Cha. The trial judge instructed the jury as to the defense of incurred risk: “The Plaintiff incurs the risk of injury if she actually knew of the specific danger, understood the risk involved and voluntarily exposed herself to that danger” Id. at 979.The jury returned a verdict in favor of Cha.

Spar appealed, arguing that the trial court erred in instructing the jury on the defense of incurred risk. The Supreme Court agreed that the “assumption of risk – whether in the express, primary, or secondary sense – has little legitimate application in the medical malpractice context.”907 N.E.2d 974, 982.Because of the disparity in information between physicians and patients, there is “virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than ‘ordinary care’.” Patients are “entitled to expect that the services will be rendered in accordance with the standard of care, however risky the procedure may be.” Id.

Note 11. Law in Books, Law in Action, and the “New” Model of Shared Decision-making.

Washington enacted legislation supporting a pilot initiative for shared medical decision-making in 2007. West's RCWA 41.05.035 (2009). The legislation establishes documentation through which shared medical decision making can be considered prima facie evidence that the physician has obtained appropriate informed consent.