In the Marx brothers movie Duck Soup , during the trial scene, Chico asks, “What has a trunk but no key, weighs 2000 pounds, and can be found in a circus?” The prosecuting attorney says, “That’s irrelevant.” Chico responds, “A relephant? Hey, that’s the answer. There’s a whole lotta relephants in the circus.” Schwartz v Johnson , 49 A 3 d 359 (Md Ct Spec App, 2012) picks up on that theme.

The facts are simple. The patient underwent a colonoscopy, during surgery the colon was perforated, and the patient suffered significant injuries as a result. The patient sued, alleging negligence on the part of the defendant regarding the technique used during the procedure. At trial, the plaintiff filed a motion in limine to bar the introduction of any evidence regarding his granting the defendant informed consent to perform the procedure because there was no claim made against the defendant for lack of informed consent. The plaintiff argued that since he had not filed a claim for lack of informed consent, any evidence presented claiming that he had granted it would “be legally irrelevant, and could only serve to confuse the jury on the relevant issue of [the appellant’s] medical and surgical negligence.” The appellant (the defendant) responded that the entire defense was premised on the fact that “evidence of informed consent was relevant to their affirmative defense of assumption of the risk as bowel perforation is an accepted risk or complication of a colonoscopy, perforation is a known risk of even the most carefully performed colonoscopy, and because this risk was clearly explained to [the defendant], a reasonable jury could conclude that he accepted the risk of the perforation.” In summary, the defense stated that the jury should not be prevented from considering evidence supporting such a defense. The court granted the motion to exclude the evidence. The result was that the jury found for the plaintiff, and this appeal ensued.

At trial, the appellate court specifically addressed each issue and concern, all of which are applicable to orthodontics and will be discussed here. Dealing with the legal theory of assumption of the risk, the court noted that to succeed in establishing this affirmative defense, the defendant must prove first that the plaintiff had a knowledge of the risk of the danger involved; second, that he appreciated that risk; and third, that he voluntarily confronted the risk. To put it another way, the court stated that assuming a risk means that the plaintiff voluntarily assumes a risk of “incurring an accident which may not occur, and which the person assuming the risk may be careful to avoid after starting.” It also presumes that to voluntarily expose himself to the risk “there must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct.” Since this defense is so rare in medical malpractice actions, the Maryland court looked at how other jurisdictions have dealt with this issue.

In those states, the only 2 applications are when a patient refuses to follow a doctor’s recommendation for treatment, and when the patient chooses to follow an unconventional or radical medical or surgical approach regarding his care. An example of the first is when the doctor recommends that a specific test or treatment is necessary and the patient waits, on his or her own volition, an extraordinarily long time in following the doctor’s recommendation, if ever. An orthodontic example is when a practitioner recommends that certain deciduous teeth should be extracted to deal with an ectopically erupting tooth, and the patient waits a year or so to have the extraction, or he just refuses to comply; either way, the result is resorption of an adjacent tooth. An example of the second might be an obvious extraction case when the patient seeks alternative treatment to try to “grow additional bone” or undergo some type of jaw widening to accommodate the crowding; such a decision would not be considered a viable clinical approach for any number of reasons.

In evaluating why that defense should not apply in a medical malpractice setting, the court said succinctly that a plaintiff must assume 3 elements for its applicability (knowledge of the danger, appreciation of the risk, and voluntary acceptance of the risk). In the health care arena, for someone to assume this risk, he or she must voluntarily assume that the doctor in question will negligently perform the procedure under consideration. Carried to its logical conclusion, to allow this would mean that doctors would no longer have to follow any standard of care if negligence can be assumed. This conclusion would then be against every “legal, ethical, and professional standard that regulates the healthcare profession.” Quoting another case, the court noted the following.

In the context of medical malpractice, the superior knowledge of the doctor and his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense, i.e., knowledge and appreciation of the risk. Thus, save for exceptional circumstances, a patient cannot assume the risk of negligent treatment. (Cit. Omit.)

In addition, in most states, it is basically considered against public policy to allow patients to consent to the rendering of negligent treatment even when they would voluntarily want to do so. An orthodontic example would be an adult patient with active periodontal disease telling the orthodontist to start treatment when both of them know that the orthodontic therapy will make the periodontal condition worse.

The court, needing to clarify the distinction between claims of negligence and those for lack of informed consent, noting that they are “separate, disparate theories of liability,” stated the following.

The doctrine of informed consent thus imposes on a physician, before he subjects his patient to medical treatment, the duty to explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. … The physician’s “duty to disclose” requires that the physician explain to the patient “the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. … Breach of informed consent must be pled as a separate count of negligence. (Cits. Omit.)

As to claims of negligence in medical malpractice, the court noted that in these claims “a healthcare provider breaches a duty to exercise ordinary medical care and skill based upon the standard of care in the profession. … In other words, medical malpractice is predicated upon the failure to exercise requisite medical skill and, being tortious in nature, general rules of negligence usually apply in determining liability.” Because they are essentially totally separate legal theories that may invoke liability on the part of health care practitioners, to allow evidence pertaining to a defense of one is not appropriate in defending against the other, since the evidence regarding the defense of either may not be relevant or applicable, and hence could totally mislead and confuse the jury.

To make the point even clearer, the court made the hypothetical that even if it the evidence was deemed to be relevant, it would be so prejudicial that it would have to be excluded. Noting a decision from a sister state, the court stated the following.

Knowledge by the trier of fact of informed consent to risk, where lack of informed consent is not an issue, does not help the plaintiff prove negligence. Nor does it help the defendant show he was not negligent. In such a case, the admission of evidence concerning a plaintiff’s consent could only serve to confuse the jury because the jury could conclude, contrary to the law and the evidence, that consent to the [procedure] was tantamount to consent to the injury which resulted from that surgery. In effect, the jury could conclude that consent amounted to a waiver, which is plainly wrong. (Cit. Omit)

The court ruled for the plaintiff, holding that it was appropriate not to admit the informed consent evidence when there was no claim for lack of informed consent and the only claim was for negligent treatment.