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Judge: Duty to advise of risk belongs only to doctor, not hospital, employer

A federal judge has dismissed a lawsuit against a Baltimore hospital and neurosurgery practice, saying they cannot be held liable for a surgeon’s alleged failure to obtain a patient’s informed consent before operating.

While an employer is generally liable for its employee’s actions, the duty to obtain informed consent belongs solely to the doctor, Judge Richard D. Bennett ruled Monday in the U.S. District Court case.

Bennett’s order removes St. Agnes Healthcare Inc. and Neurosurgery Services LLC from Rodney Robertson’s lawsuit, in which he says he would not have had back surgery in 2006 had the surgeon, Dr. Brian A. Iuliano, told him about the risk of infection.

Due to an infection, Robertson, a deliveryman, required additional surgeries that allegedly cost him more than $250,000 in lost wages, medical expenses and pain and suffering.

The lawsuit can still proceed against Iuliano, with a trial scheduled to start Jan. 22.

St. Agnes’ attorney, Shannon Madden Marshall, called Bennett’s decision “a victory for hospitals in Maryland.”

“Informed consent is a physician’s duty and a physician’s duty alone,” added Marshall, of Goodell, DeVries, Leech & Dann LLP in Baltimore. “The duty lies with the physician.”

The judge called it a “non-delegable duty of the physician” under Maryland law, since the patient “depends completely on the trust and skill of his physician for the information on which he makes his decision.”

“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,” he added, “but the adequacy of the explanation of the physician in obtaining consent.”

For similar reasons, Neurosurgery Services cannot be liable, Bennett ruled.

“While Neurosurgery Services was Dr. Iuliano’s employer, Dr. Iuliano had the exclusive control over the manner in which he performed his duty to obtain informed consent,” Bennett wrote.

The doctor “was the only one with the skill and training as well as the knowledge of Robertson’s condition and records to seek his consent,” he wrote. “Therefore, Dr. Iuliano was not acting as a servant of Neurosurgery when seeking Robertson’s informed consent.”

Neurosurgery Services’ attorney, Peter E. Keith, called Bennett’s opinion a “valuable” recognition that doctors have “a specialized duty” that cannot be imputed to the practices for which they work.

“His decision is completely consistent with Maryland law,” said Keith, of Gallagher, Evelius & Jones LLP in Baltimore.

Robertson’s attorney, Thomas O’Toole, did not return telephone messages seeking comment Tuesday. O’Toole is with Baroody & O’Toole in Baltimore.

The judge said hospitals or medical practices can be held liable if they have “specifically assumed the duty” of informing the patient themselves. However, he wrote, it was legally insignificant that the hospital provides informed-consent forms to its doctors.

“It is undisputed that the St. Agnes Hospital’s Informed Consent forms represent a precautionary measure instituted by the hospital as a courtesy to the physicians who perform surgeries on its premises,” Bennett wrote. “St. Agnes does not specifically assume the duty to obtain informed consent by means of these forms. Because St. Agnes does not have an independent duty to obtain informed consent and did not specifically assume this duty, it is not liable.”

The doctor, through his attorney, said Robertson signed one of those informed consent forms, but it has since been lost. In any event, Robertson’s informed consent is reflected in the medical records of the surgery, said the attorney, Trace Krueger, of Baxter, Baxter, Sidle, Conn & Jones P.A. in Baltimore.

“Dr. Iuliano always gets informed consent,” Krueger said Tuesday. “He did in this case.”

Three surgeries

Robertson injured his leg delivering a dryer to a Lowe’s Home Improvement customer in February 2006. Over the next three months, the pain spread to his back and became more intense, according to his lawsuit.

In May 2006, Robertson’s primary doctor referred him to Iuliano, a neurosurgeon at Neurosurgery Services with privileges at St. Agnes Hospital.

On May 30, 2006, Iuliano reviewed Robertson’s medical records with him and recommended surgery among various treatment options.

Robertson alleges Iuliano never mentioned the risk of infection from surgery.

Iuliano performed the surgery on June 22, 2006, at St. Agnes, after which Robertson developed an infection.

The doctor performed a second surgery on July 27, 2006, with Robertson’s informed consent for that surgery. Robertson experienced more pain, resulting in a third surgery, with informed consent, on Nov. 21, 2006, according to the lawsuit.

Robertson sued St. Agnes Healthcare, Neurosurgery Services and Iuliano on April 2, 2010, in Baltimore City Circuit Court. The only negligence he alleged was in the failure to obtain his informed consent.

A month later, the defendants successfully moved to have the case heard in the U.S. District Court in Baltimore, citing the diversity of citizenship between Robertson, a Virginia resident; and the defendants, the Baltimore hospital and practice and Iuliano, who was by that time a resident of Washington state.