From the Listserv (Continued from page 38)


sure there are a very, very, very few over the years when I have actually signed on. BUT, it is a damned rare event. Instead, I respond (even when I received theirs al- ready signed by my client) with this text. It usually works, and if they wish to call and discuss modification, we go and re- vise from there.============


Re: Patient:Account #:D/A: Dear Sir/Madam:


This is merely to confirm that our cli-


ent referenced above has given us authority and instructions to pay any ob- ligation to your facility out of any settlement or award received in this claim. Further, upon any request from your of- fice, we will inform you of the status of the claim, and will notify you if for any reason we no longer represent the client or the claim is denied. I understand that by providing you with this confirmation and accounting to you during the course of and upon completion of this claim, you will: 1. Provide copies of medical records and itemized billing statements for this patient as needed, at no ex- pense.


2. Review and sign affidavits confirm- ing authenticity of the medical records, medical necessity of care rendered, and fairness and reason- ableness of charges associated with such care, if so requested.


3. Await payment of this balance un- til resolution of the claim, whether by way of settlement or award.


4. Forward any future correspondence or billings to this office.


On behalf of our client and your pa- tient, I thank you. I also enclose an appropriately executed Medical Authori- zation for your file. If you have any questions, please do not hesitate to call me. Sincerely,=============== Good luck. Niel


Informed Consent-Damages


Sent by Member: Mark S. Cohen: law22msc@aol.com:


Generally, what are the damages recov- erable for failure to obtain a patients informed consent? Any case references would be appreciated. The Sard case and


40


the subsequent cases dealing with in- formed consent do not specifically deal with damages.In my recent case the court submitted both questions to the jury, breach of standard of care and failure to obtain informed consent but did not sub- mit a separate question in damages for both but just one question relating to damages. Jury found on both questions for plaintiff and awarded one set of dam- ages. Defense is now arguing that if the appellate court sets aside either the pure negligence count or the informed consent count you can’t tell if jury awarded the same amt of damages for each count or they awarded + to negligence and + to informed consent. Interesting?


From: William M Jacobs: mjacobslaw@juno.com:


That’s ridiculous. If it’s the same mea-


sure of damages, and an indivisible injury, it’s not apportioned between 2 different bases of liability just because the jury found defendant liable for both theories. That would be like in a product case, su- ing for negligent manufacture, breach of warranty, and strict product liability, sub- mitting all 3 theories on the verdict sheet, and a single line for assessing damages (broken down, if necessary, into eco- nomic/non-economic components). It doesn’t matter which theory they hang their hat on to find in favor of your cli- ent, the measure of damages is the same and is not diminished if one of the liabil- ity theories fails on appeal. That’s exactly the reason why you want to submit sepa- rate liability theories separately on the verdict sheet, instead of a general verdict.


Sent by Member: George S. Tolley, III: gtolley@medicalneg.com:


“The rendering of medical services absent informed consent, if pled properly, constitutes a separate and new count of negligence.” Zeller, 67 Md. App. at 81- 82. I don’t know how much more explicit it can get. In fairness, I think that the Court’s posi- tion is needlessly hypertechnical, and I agree with you to an extent. However, I reconcile all of this by my understanding (admittedly untested by heavy briefing or argument in court, since I’ve never had it come up) that informed consent is not basedupon a violation of “a professional standard of care,” which would require


Trial Reporter


expert testimony to prove, but rather a more general “standard of reasonable con- duct” that is directly accessible to the jury. Therefore, I think it would not be im- proper for the court to give separate instructions on informed consent, since the standard of liability is wholly differ- ent.


From: Ashcraft & Gerel (Bob Samet): ashcraft@radix.net:


I agree with you, and to take it a step


further, lack of informed consent is not only not the same cause of action and not the same tort, but it doesn’t necessarily carry the same damages. I’m sure we all realize that a cause of action for lack of informed consent can stand alone, with- out there being a breach of the standard of care, even though there are not too many instances where we’d want to pur- sue such a claim.To show that the damages may well be different than the cause of action for breach of the standard of care, let me illustrate with an example where both causes of action exist but with dif- ferent measures of damages. Mr. X has a very bad back and is in excruciating pain day in and day out. Highly risky surgery is recommended as his only option. The risks are not properly divulged. He chooses to go under the knife. The pro- cedure itself is done incorrectly and negligently, and, as a result, he is left pain free but paralyzed.On the cause of action for medical negligence in the performance of the procedure, the damages would be the difference between his being pain free and paralyzed as he is now versus being pain free and completely mobile for the rest of his life had the procedure been done correctly.On the cause of action for Lack of Informed Consent, if it’s proven that a reasonable person, if informed of all the material risks, would have chosen to avoid surgery, the damages would be the differ- ence between a lifetime of excruciating pain and his current condition of being pain free but paralyzed. As you can see, the damages are very different.And you’re right about not needing an expert on the standard of care in an informed consent case, but you may well need an expert to establish the occurrence rate of a compli- cation as it relates to proving the threshold question of whether a risk was material or the question of whether a reasonable person would have undergone the proce- dure if correctly informed of the risk and its occurrence rate.


Winter 2003


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