Earlier this month, a federal trial judge ruled that a hospital and surgery center could not be held liable for a surgeon’s alleged failure to obtain a patient’s informed consent prior to surgery.

In Robertson v. Iuliano, et al., a case pending in the United States District Court for the District of Maryland, Rodney Robertson suffered from a series of infections after Dr. Brian Iuliano (“Dr. Iuliano”), an employee of Neurosurgery Services, LLC (“NS”), operated on his back at St. Agnes Hospital (“St. Agnes”).  Robertson filed suit against Dr. Iuliano, NS, and St. Agnes, contending that Dr. Iuliano failed to advise him of the risk of infection before surgery.  He – dubiously, in my opinion – claims that he would not have had the surgery had he known of the risk of infection.  He claims lost wages, medical expenses, and non-economic (pain and suffering) damages.  

On December 10, 2012, Judge Richard D. Bennett granted summary judgment in favor of Defendants NS and St. Agnes.  In his Memorandum Opinion, Judge Bennett pointed out, quoting from Maryland case law, that “the doctrine of informed consent imposes on a physician, before he subject his patient to medical treatment, the duty to explain the procedure ... and to warn of any material risks or dangers inherent in or collateral to the therapy.”  Judge Bennett continued that “where a plaintiff alleges lack of informed consent, it is not the ‘level of skill exercised in the performance of the procedure which is at issue, but the adequacy of the explanation given by the physician in obtaining’ consent.”

Based on the language contained in the quoted Maryland cases, as well as other jurisdictions’ treatment of the issue, Judge Bennett concluded that “the duty to obtain informed consent is a non-delegable duty of the physician alone.”  Because there were no facts showing that Defendants NS or St. Agnes specifically assumed Dr. Iuliano’s duty, or that Dr. Iuliano was acting as their agent, Judge Bennett granted NS and St. Agnes’ summary judgment motions. 

Long before Judge Bennett’s ruling, Dr. Iuliano removed this case from state court to federal court based on the diversity of the parties.  Dr. Iuliano, a Virginia resident, was the first defendant served.  He removed the case to federal court before the other parties were served.  His gambit ended up benefiting Defendants NS and St. Agnes.  While it is impossible to say with certainty how a state court would have ruled on NS and St. Agnes’ summary judgment motions, my experience suggests that parties have a much better chance of obtaining summary judgment in federal court than in state court.   

Robertson’s case against Dr. Iuliano will proceed to trial on January 22, 2013.  While Dr. Iuliano’s removal of this case to federal court could very well benefit him at the upcoming trial, at this point his strategy has left him to defend this action all alone.