Spar v. Cha
2009 WL 1674799, 2009 Ind. LEXIS 488, 907 N.E.2d 974 (2009)
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Rule of Law:
With limited exceptions not applicable here, the affirmative defense of incurred risk is not available in a medical malpractice action where the claims are based on negligent treatment or lack of informed consent, as a patient does not consent to a deviation from the professional standard of care.
Facts:
- Brenda Spar had extensive abdominal scarring from a 1986 car accident and subsequent scar-revision surgeries with Dr. McKinnon, during which she was informed of risks like bowel perforation.
- In July 2000, Dr. Shabeeb attempted to remove Spar's gallbladder laparoscopically but had to convert to an open surgery due to her extensive internal scarring.
- In November 2000, Spar consulted obstetrician/gynecologist Dr. Jin S. Cha for fertility issues.
- Dr. Cha, aware of Spar's surgical history and the difficulty of her previous laparoscopic procedure, recommended a diagnostic laparoscopy to check for blocked fallopian tubes.
- On January 12, 2001, just before the procedure, Dr. Cha informed Spar of risks including bleeding, bowel injury, and infection; Spar signed a consent form and stated she did not want any long incisions.
- During the laparoscopy, Spar's bowel was perforated, a complication Dr. Cha did not detect at the time.
- Over the next few days, Spar developed severe pain, fever, and leakage from an incision. She initially declined Dr. Cha's advice to go to the emergency room.
- When she was finally taken to the hospital, an emergency surgery revealed the bowel perforation, which required removal of a bowel segment and led to a five-and-a-half-week hospitalization and further complications.
Procedural Posture:
- Brenda Spar submitted a medical malpractice complaint against Dr. Jin S. Cha to an Indiana medical review panel.
- The medical review panel unanimously found that Dr. Cha had failed to meet the standard of care.
- Spar filed suit against Dr. Cha in the Lake Superior Court (the trial court) on theories of negligence and failure to obtain informed consent.
- At trial, the court denied Spar's motion for judgment on the evidence on the issue of incurred risk and instructed the jury on that defense.
- A jury returned a general verdict in favor of Dr. Cha.
- Spar, as appellant, appealed to the Indiana Court of Appeals, which reversed the trial court's judgment and remanded for a new trial.
- The Indiana Supreme Court granted transfer to review the case.
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Issue:
Is the affirmative defense of incurred risk available in a medical malpractice action where the patient's claims are based on negligent treatment and lack of informed consent?
Opinions:
Majority - Boehm, Justice
No, the affirmative defense of incurred risk is generally not available in a medical malpractice action for negligent treatment or lack of informed consent. The court reasoned that assumption of risk has little legitimate application in the medical malpractice context due to the significant disparity in knowledge between medical professionals and their patients. A patient consents to the inherent risks of a medical procedure performed with ordinary care, not to the separate risk of the provider's negligence. The court clarified that a patient is always entitled to expect that services will be rendered in accordance with the professional standard of care, regardless of the procedure's inherent riskiness. Therefore, Spar's consent to the laparoscopy did not constitute her incurring the risk that Dr. Cha would be negligent in recommending or performing it. The court concluded it was an error to instruct the jury on incurred risk.
Analysis:
This decision significantly curtails the use of the incurred risk defense in Indiana medical malpractice litigation, effectively removing it as a standard defense against claims of negligence or lack of informed consent. By emphasizing the physician's non-delegable duty to meet the standard of care and the patient's inability to consent to negligence, the court reinforces the fiduciary nature of the doctor-patient relationship. This precedent forces defendants to focus on other defenses, such as challenging the elements of negligence (duty, breach, causation) or arguing contributory negligence based on the patient's own actions (e.g., failure to follow post-operative instructions), rather than claiming the patient assumed the risk of malpractice simply by consenting to treatment.
