Arrabal v. Crew-Taylor

SALMON, Judge. On October 17, 1998, Tracy Crew-Taylor entered Harbor Hospital Center in Baltimore. She was expecting triplets, who were at thirty weeks, two days gestation. 1 Her treating physician, Dr. Pedro P. Arrabal, diagnosed Mrs. Crew-Taylor as suffering from gestational diabetes. Mrs. Crew-Taylor delivered two daughters (Cache and Sashe) and a son (Che) on the afternoon of October 19.

The two girls were in good physical shape. Che had no pulse when delivered and did not breathe for the first fifteen to twenty minutes afterward. He was revived but thereafter was in a “vegetative state” and suffered from numerous physical problems, including profound hearing loss and blindness. He spent most of his life (fourteen months) in various hospitals and died from his pre-birth injuries on December 6,1999.

A three-count complaint against Dr. Arrabal and Harbor Hospital Center, Inc., was filed in the Circuit Court for Baltimore City on April 4, 2001. All counts of the complaint alleged that Harbor Hospital Center’s agent, Dr. Arrabal, deviated from the applicable standard of care by failing to deliver the triplets immediately upon receipt (on October 18) of test results showing that the fetuses were experiencing distress. Count I, a survivorship action, was filed by Mrs. ⁶⁷³ Crew-Taylor as personal representative of Che’s estate. Count II was a wrongful death action filed by Che’s father, Charles Taylor, and his mother, Mrs. Crew-Taylor.

Count III, captioned “Lack of Informed Consent,” also was filed by Che’s parents. That count read, in part, as follows: 39. Although the [djefendants knew and/or in the exercise of reasonable obstetrical and/or perinatology care should have known that Mrs. Taylor and/or Che Taylor’s condition was indicative of fetal distress and the need for timely delivery of Mrs. Taylor’s triplets, they failed to inform Mr. and Mrs. Taylor of this important fact. 40. Contrary to acceptable standards of obstetrical and/or perinatology care, the [defendants failed to timely deliver Mr. and Mrs. Taylor’s triplets. 41.

By failing to inform Mr. and Mrs. Taylor of Mrs. Taylor and Che Taylor’s condition and that diagnostic, EFM and other testing clearly indicated that delivery of her triplets was indicated, the [djefendants breached their duty to obtain the informed consent of Mr. and Mrs. Taylor prior to commencing their decision to prolong the pregnancy in light of clear signs of fetal distress. 42. The [djefendants negligently failed to disclose to Mr. and Mrs. Taylor all material information regarding the course of treatment they proposed (prolonging the pregnancy), the risks to Mrs. Taylor and the fetuses of prolonging the pregnancy, the probability of having healthy fetuses if delivery was/is to be performed sooner as opposed to later, and the risks and consequences associated with hypoxia and acidosis should a trial of labor, vaginal delivery and/or prolonging the pregnancy were attempted. 43. Mr. and Mrs. Taylor were not provided with any alternatives to the [djefendants’ proposed treatment of prolonging the pregnancy, in particular earlier delivery of the triplets. 44. If Mr. and Mrs. Taylor, and any reasonable person in their situation, would have been advised of the risks, complications and consequences associated with allowing the ⁶⁷⁴ labor and/or pregnancy to progress/continue, they would have withheld their consent to prolonging the pregnancy and would have requested the timely delivery of their triplets. 45.

The [d]efendants further failed to inform Mr. and Mrs. Taylor that there was evidence of fetal distress and that more severe and diffuse brain injury increases with the severity and duration of any hypoxic or ischemic event. 46. As a direct result of the [defendants’ failure to fully inform Mr. and Mrs. Taylor of the true nature of Che Taylor’s condition (that it reflected fetal hypoxia and/or asphyxia), and in failing to inform Mr. and Mrs. Taylor of the alternative course of treatment consisting of timely delivering their babies, Mr. and Mrs. Taylor prolonged Mrs. Taylor’s pregnancy, resulting in the damages alleged in Paragraphs 29 through 31 and Paragraph 35 of this Complaint. At the conclusion of a six-day trial, the jury was required to answer several questions. The verdict sheet, as completed by the jury, read: 1.

Do you find, by a preponderance of evidence, that the [defendant, PEDRO ARRABAL, M.D., breached the standard of care in his care and treatment of [pjlaintiffs, TRACY CREW-TAYLOR and CHE TAYLOR? YES X NO If your answer to Question 1 is “YES”, proceed to Question 2. If your answer to Question 1 is “NO”, proceed to Question 3. 2. Do you find, by a preponderance of the evidence, that the [defendant's, PEDRO ARRABAL, M.D., breach in the standard of care was a proximate cause of an injury to the [plaintiffs, TRACY CREW-TAYLOR, CHARLES TAYLOR, and CHE TAYLOR?

YES X NO Proceed to Question 3. ⁶⁷⁵ 3. Do you find, by a preponderance of the evidence, that the [defendant, PEDRO ARRABAL, M.D., failed to obtain an informed consent from the [pjlaintiff, TRACY CREW-TAYLOR? YES Z NO _ If your answer to Question 3 is “YES”, proceed to Question 4. If your answer to Question 3 is “NO”, and Question 1 was “NO” stop and inform the Clerk.

If your answer to Question 3 is “NO”, and Question 2 was “YES”, proceed to Questions 5A, 5B, & 5C. If your answer to Question 3 is “NO”, and Question 2 was “NO”, stop and inform the Clerk. 4. Do you find, by a preponderance of the evidence, that the [djefendant’s, PEDRO ARRABAL, M.D., failure to obtain an informed consent from the [pjlaintiff, TRACY CREW-TAYLOR, was the proximate cause of injuries claimed to have been sustained? YES Z NO If your answer to Question 4 is “YES”, proceed to Question 5B only. [2] If your answer to Question 4 is “NO”, and Question 1 was “NO”, stop and inform the Clerk.

If your answer to Question 4 is “NO”, and Question 2 was “YES”, proceed to Questions 5A, 5B & 5C. If your answer to Question 4 is “NO”, and Question 2 was “NO”, stop and inform the Clerk. 5. In what amount, if any, do you find damages for the Plaintiffs, TRACY CREW-TAYLOR, CHARLES TAYLOR and CHE TAYLOR for: A. Claims of the Estate of CHE TAYLOR: Past Medical Expenses $ 636,414.90 ⁶⁷⁶ Funeral Expenses $ 6,651.00 Non-Eeonomie Damages: (pain and suffering, and other non-pecuniary damages) $ 200,000.00 B. Claims for TRACY CREW-TAYLOR -0- /s/LDC Past Medical Expenses $ 636,41490 10/24/02 Non-Economic Damages: (pain and suffering, mental anguish, and other non-pecuniary damages) $ 1,400,000.00 C. Claims for CHARLES TAYLOR Non-Economic Damages: (pain and suffering, mental anguish, and other non-pecuniary damages) $ 150,000.00 2,393,065.90 /s/LDC TOTAL OF DAMAGES $2,036,41490 10/24/02 Upon review of a post judgment motion filed by the defendants, the trial judge reduced Mrs. Crew-Taylor’s non-economic damage award from 1.4 million dollars to $778,837.50 and reduced Charles Taylor’s non-economic damages to $83,662.50. These reductions were mandated by Maryland’s “cap statute,” which is found in Section 11—108(b) of the Courts and Judicial Proceedings Article of the Maryland Code (2002 Repl.

Voh). The court also reduced the award for funeral expenses from $6,651 to $3,500. Except for the aforementioned reductions, the court, in all other respects, denied the defendants’ post-trial motions for judgment notwithstanding the verdict and/or new trial and/or to alter or amend the judgment. This appeal followed.

I. FACTUAL BACKGROUND The appellees presented sufficient evidence, if credited by the jury, to prove that Dr. Arrabal deviated from the appropriate standard of care by failing to deliver the triplets on October 18, 2002. 3 Appellants do not claim otherwise. For ⁶⁷⁷ that reason, our recitation of the facts developed at trial will be somewhat abbreviated. Mrs. Crew-Taylor arrived at the outpatient labor and deliver unit of Harbor Hospital Center at approximately 11:00 p.m. on October 17, 1998. She sought treatment because, as to one of the fetuses, she had noticed decreased fetal movement.

Personnel in the labor and delivery unit ascertained the heart rates of the three fetuses by electronic fetal monitoring. Findings from that monitoring were “non-reassuring” for each of the triplets. Additionally, Mrs. Crew-Taylor’s blood sugar levels were found to be elevated, which showed that she was suffering from gestational diabetes. Gestational diabetes complicates a pregnancy and poses serious risks to both the mother and the fetuses.

Between 8:30 and 10:30 a.m. on October 18, a biophysical profile and Doppler ultrasound were performed on the umbilical cords of each of the triplets. These tests, along with electronic fetal monitoring and fetal movement tests, were administered to determine the well being of each of the fetuses. The biophysical profile for all three fetuses produced scores that were “non-reassuring.” Of particular significance, the ultrasound of Che Taylor’s umbilical artery showed reverse diastolic flow, which indicated that Che was not getting enough nutrients and oxygen because the blood was flowing away from the placenta. Dr. Arrabal attributed the non-reassuring test results to the mother’s hyperglycemia (high blood sugar).

He did not consider the tests’ results sufficiently adverse so as to require an immediate delivery of the fetuses, in light of the significant risk attendant to pre-term (prior to thirty-seven weeks) delivery of multiple fetuses. His plan was to continue the mother’s insulin therapy and to conduct another biophysical profile the next day. Accordingly, Mrs. Crew-Taylor was injected with intermittent shots of insulin to treat her gestational diabetes. ⁶⁷⁸ On October 19, at 12:19 p.m., results of another biophysical profile were received. This profile indicated that Che had developed severe bradycardia (reduced heart rate) and agonal heartbeat, which meant that he was almost terminal.

Dr. Arrabal ordered an emergency Caesarian section. All three babies were delivered at approximately 12:40 p.m. on October 19. Che was born severely depressed, without a heart rate or a pulse and was “close to dead.” He was revived after a long period of cardio-pulmonary resuscitation. Mrs. Crew-Taylor testified that Dr. Arrabal never informed her that any of the tests that had been administered were non-reassuring.

According to her, “the only [tjhing [she] was told was [that] everything was fine,” and that she was going to stay in the hospital and be monitored due to the gestational diabetes problem. More specifically, Dr. Arrabal did not discuss with her the risks or benefits of continuing her pregnancy versus immediately delivering the triplets. Dr. Arrabal also did not discuss hypoxia (insufficient oxygen) with her and what could happen to the fetuses if hypoxia was the cause of the non-reassuring test results, nor did he discuss the likely consequences if the hypoxia continued without treatment. By the time he was sued, Dr. Arrabal had no notes or recollection as to what he had discussed with Mrs. Crew-Taylor in October of 1998 concerning the non-reassuring test results or about what, if anything, he had told the mother regarding the risks associated with continuing the pregnancy.

Dr. David Feisner, an OB/Gyn from Michigan, was called as an expert witness by plaintiffs. He testified that Dr. Arrabal deviated from the standard of care in several respects. In regard to the lack of informed consent claim, he testified that the doctor deviated from the standard of care because he failed to inform Mrs. Taylor what the situation was. She had numerous tests, all of which have been described as non-reassuring, and that’s a situation that she should have been made aware of so that a plan of management could be formulated.

Any time any person has a test it’s important ⁶⁷⁹ to let them know what’s going on so that they can be aware that yes, things are okay or things are not okay. Appellants’ expert, Dr. Harold Fox, on cross-examination, agreed with plaintiffs’ counsel that, as a general proposition, it is reasonable for a mother to know her status and the status of her fetuses, and to be informed of the probable success of treatment alternatives, when those probabilities can be defined. Another of appellants’ experts, Dr. Donald Chambers, testified that Che’s parents should have been told that the results of the biophysical profile were non-reassuring.

II

QUESTIONS PRESENTED The questions presented by appellants, which we have reordered and re-phrased, are as follows: 1. Did the trial court err in submitting appellees’ informed consent claim to the jury because lack of informed consent must be predicated on the failure to advise of material risks and medical alternatives in the context of an affirmative treatment affecting the physical integrity of the patient under Reed v. Campagnolo, 332 Md. 226 , 630 A.2d 1145 (1993), and the continuation of a patient’s pregnancy (the failure to deliver) does not qualify as such an affirmative treatment? 2. Assuming, arguendo, the trial court did not err in allowing the jury to consider the action for informed consent, whether the trial court nevertheless abused its discretion in restricting cross-examination of Mrs. Crew-Taylor concerning the course she would have taken if Dr. Arrabal had advised her that delivery was an option, and of the risks associated with premature delivery, including long term morbidity? 3. Did the trial court’s failure to require the jury to itemize damages for both negligence and informed consent require a new trial because the award to Mrs. Crew-Taylor may have improperly included damages based on informed consent? ⁶⁸⁰ 4.

Did the trial court err in submitting to the jury the estate’s claim for conscious pain and suffering, instructing on such damages, and including them in the special verdict to be itemized by the jury, because the expert and lay testimony did not establish the consciousness of this fetus/infant and his capacity for pain and suffering? 5. Did the trial court err in submitting the estate’s claim for medical expenses to the jury? 6. Even assuming, arguendo, that the trial court did not err in submitting the estate’s claims for medical expenses to the jury, did the trial court err in restricting appellants’ cross-examination of Mrs. Crew-Taylor concerning the payment of those medical expenses and in refusing to modify the jury’s award to account for payments made? 7. Did the trial court err in denying appellants’ post-trial motions on the grounds that the verdict was excessive, improperly based on sympathy, and the product of confusion and erroneous jury instructions?

A. Question 1 At the conclusion of the entire case, counsel for appellants made a motion for judgment as to the portion of plaintiffs’ claim alleging lack of informed consent. Defense counsel maintained that a lack of informed consent action must be predicated “on the failure [of the health care provider] to advise [the patient] of material risks,” but that duty applied only when the provider plans to provide affirmative treatment affecting the physical integrity of the patient. Counsel for the movants also contended that, although failing to deliver the triplets on October 18 might (at least arguably) constitute a negligent breach of the expected professional standard of care, failure to explain the pros and cons of taking no immediate action would not suffice to support an action for lack of informed consent. In support of their motion, defendants relied principally on the cases of Reed v. Campagnolo, 332 Md. ⁶⁸¹ 226, 630 A.2d 1145 (1993), and Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977).

The first case in Maryland to recognize a cause of action for lack of informed consent was Sard . Mrs. Sard, who was pregnant for the third time, wanted to deliver her third child but selected sterilization from among the options her doctor gave her in order to fulfill her wish of never becoming pregnant again. 281 Md. at 436 , 379 A.2d 1014 . While delivering her third child by Caesarian section, Dr. Erving Hardy performed a bilateral tubal ligation. Id.

After Mrs. Sard became pregnant for the fourth time, she and her husband sued Dr. Hardy, claiming, inter alia, that Dr. Hardy had failed to advise them that the surgical procedure was not absolutely certain to prevent future pregnancies. The Sards also alleged that the doctor had failed to discuss with them alternative methods of sterilization. At the close of the Sards’ case, the trial court directed a verdict in favor of Dr. Hardy as to all counts. The Court of Appeals reversed and held that the evidence was sufficient to warrant submitting to the jury the question of whether the information withheld by the doctor was material to Mrs. Sard’s decision to have the bilateral tubal ligation.

The Sard Court said: [T]he physician’s duty to disclose risk information is whether such data will be material to the patient’s decision: “The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is whatever is material to the decision. Thus, the test for determining whether a potential peril must be divulged is its materiality to the patient’s decision.” Cobbs v. Grant, [ 8 Cal.3d 229 ,] 104 Cal.Rptr. [505] at 515, 502 P.2d [1] at 11. By focusing on the patient’s need to obtain inform,ation pertinent to the jrraposed surgery or therapy, the materiality test promotes the paramount purpose of the informed consent doctrine—to vindicate the patient’s right to determine what shall be done with his own body and when. ⁶⁸² We hold, therefore, that the scope of the physician’s duty to inform is to be measured by the materiality of the information to the decision of the patient. A material risk is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure.

Whether a physician has fulfilled his duty to disclose, then, is to be determined by reference to a general standard of reasonable conduct and is not measured by a professional standard of care. Sard, 281 Md. at 443-44 , 379 A.2d 1014 (citations omitted) (emphasis added). In Reed v. Campagnolo, the Court of Appeals was required to address two certified issues submitted to it by the United States District Court of Maryland. One of the certified issues was: WTiether the continuation of a pregnancy is a decision requiring the informed consent of the patient ... when the allegedly negligent course of treatment is the defendant physician’s failure to inform a pregnancy patient about the availability, risks and benefits of diagnostic testing which might reveal birth defects, and failure to inform the patient about the benefits and risks associated with aborting a severely deformed fetus.

Reed, 332 Md. at 228 , 630 A.2d 1145 . The Reed Court answered the question quoted above in the negative. In Reed , it was alleged that the defendants failed in the course of providing pre-natal care to inform the plaintiffs of the existence of, or need for, an a-fetoprotein (AFP) blood test. According to the plaintiffs, administration of the AFP test would have revealed the need for an amniocentesis, which, in turn, would have revealed the extent of the defects of the fetus.

Plaintiffs further alleged that they would have chosen to terminate the life of the fetus had they known of the defects. A child was born to the Reeds with very serious abnormalities. Id. at 230 , 630 A.2d 1145 . ⁶⁸³ Holding that an action for lack of informed consent would not lie under the facts of that case, the Reed Court said: The Reeds, emphasizing that they were not told by the defendants about AFP and amniocentesis tests, say that they lacked informed consent. But one’s informed, consent must be to some treatment.

Here, the defendants never proposed that the tests be done. Whether the defendants had a duty to offer or recommend the tests is analyzed in relation to the professional standard of care. Application of that standard may or may not produce a result identical with the informed consent criterion of what reasonable persons, in the same circumstances as the Reeds, would want to know. Id. at 241 , 630 A.2d 1145 (emphasis added).

In reaching its decision, the Court noted that in Sard the Court spoke “of promoting the paramount purpose of the informed consent doctrine—to vindicate the patient’s right to determine what shall be done with his own body and when.” Reed, 332 Md. at 242 , 630 A.2d 1145 (quoting Sard, 281 Md. at 444 , 379 A.2d 1014 ). In Reed , the Court ruled that, for the doctrine of informed consent to be applicable, the doctor must fail to explain the pros and cons of some affirmative violation of the patient’s physical integrity, such as performing surgery or injecting the patient. The commentators similarly speak of informed consent in the context of a doctor’s affirmative act. See F. Harper, E. James & O. Gray, The Law of Torts § 17.1, at 562 (2d ed. 1986); W.P. Keeton, Prosser & Keeton on the Law of Torts § 32, at 189-90 (5th ed. 1984); M. Shiffman, Medical Malpractice: Handling General Surgery Cases § 1.21, at 21-22 (1990); 4 S. Speiser, C. Krause & A. Gans, The American Law of Torts § 15:71, at 635 (1987); M. McCafferty & S. Meyer, Medical Malpractice Bases of Liability, ch. 11 (1985).

New York courts have held that to state a cause of action in informed consent requires an affirmative act by the ⁶⁸⁴ doctor. In Karlsons v. Guerinot, 57 A.D.2d 73, 394 N.Y.S.2d 933 (N.Y.App.Div.1977), the plaintiffs contended that the defendant doctors’ failure to inform the plaintiffs of the risks involved with the mother’s pregnancy, including the risk that she would give birth to a deformed child, gave rise to “a cause of action for failure to obtain an informed consent to continuation of the pregnancy and to the final delivery.” Id. at 81 , 394 N.Y.S.2d at 938 . The court held: “[A] cause of action based upon [the doctrine of informed consent] exists only where the injury suffered arises from an affirmative violation of the patient’s physical integrity and, where nondisclosure of risks is concerned, these risks are directly related to such affirmative treatment. Here, the resultant harm did not arise out of any affirmative violation of the mother’s physical integrity.

Furthermore, the alleged undisclosed risks did not relate to any affirmative treatment but rather to the condition of pregnancy itself. Allegations such as these have traditionally formed the basis of actions in medical malpractice and not informed consent.” Id. at 82 , 394 N.Y.S.2d at 939 (citation omitted); see also Keselman v. Kingsboro Medical Group, 156 A.D.2d 334, 335 , 548 N.Y.S.2d 287, 288-89 (1989); Etkin v. Marcus, 74 A.D.2d 633 , 633, 425 N.Y.S.2d 165, 165-66 (1980). Karlsons was applied to the facts in Pratt v. University of Minn. Affiliated Hosps. & Clinics, 414 N.W.2d 399 (Minn. 1987).

There parents sought genetic testing because the third of their three children suffered from multiple, congenital abnormalities. The defendants non-negligently advised the parents “that their chance[s] of conceiving another child with birth defects were about the same as parents in general.” 414 N.W.2d at 400 . Thereafter the plaintiffs had their fourth child who also suffered from birth defects. It was held that there was no liability on a theory of negligent nondisclosure for failure to advise of alternate possible causes of the third child’s anomalies so that the parents ⁶⁸⁵ “could make an informed decision on whether to conceive another child.” Id. at 401 .

Reed, 332 Md. at 242-43 , 630 A.2d 1145 (emphasis added). As can be seen from a review of the portion of Count III quoted supra, the gravamen of those allegations was that Dr. Arrabal never obtained Mrs. Crew-Taylor’s consent prior to making his decision not to perform an immediate Caesarian section. Just as the defendant in Reed never proposed to give a test, here, Dr. Arrabal never proposed to give Mrs. Crew-Taylor an emergency Caesarian section on October 18. Thus, the harm alleged (Che’s death) “did not arise out of any affirmative violations of [Mrs. Crew-Taylor’s] physical integrity.” Reed 332 Md. at 242 , 630 A.2d 1145 (quoting Karlsons v. Guerinot, 57 A.D.2d 73 , 394 N.Y.S.2d 933 (N.Y.App.Div.1977)).

Dr. Arrabal’s decision to take no affirmative action may have amounted to a violation of the professional standard of care, but he was not obliged to obtain his patient’s consent to his non-action. 4 We therefore hold that the trial court erred in denying appellants’ motion for judgment as to the lack-of-informed-consent portion of plaintiffs’ case. B. Question 2 The second question assumes that we disagree with appellants’ contention that the judge should not have allowed the jury to consider the lack of informed consent theory. Because we agree with appellants in this regard, we need not answer Question 2. C. Question 3 To succeed on appeal in a civil case, the burden is on the appellant to demonstrate not only that error was committed but to demonstrate, as well, how he or she was prejudiced by that error.

Crane v. Dunn, 382 Md. 83, 91 , 854 A.2d 1180 ⁶⁸⁶ (2004). Here, the question is not whether the court erred in admitting evidence concerning the lack of informed consent issue. That evidence came in without objection. Instead, the error complained about is the trial judge’s failure to grant judgment in favor of appellants as to the lack of informed consent theory.

The issue becomes: How were the appellants prejudiced by the failure to grant judgment as to the lack-of-informed-consent claim, in light of the fact that the jury found, in answering Questions 1 and 2 on the verdict sheet, that Dr. Arrabal’s breach of the standard of care in his treatment of Che and his mother was the proximate cause of an injury to both Che and his mother? Appellants argue: Evidence of appellees’ claims for negligence and lack of informed consent were inextricably intertwined because both were grounded in Dr. Arrabal’s alleged failure to deliver. As such, a new trial is required as to both liability and damages. Further, the trial court’s failure to delineate on the special verdict damages for informed consent requires reversal and a new trial on damages because the award to Mrs. Crew[-]Taylor may have improperly included damages for informed consent.

Appellants also make a closely related argument to the one just quoted, i.e., that a new trial is required because “the evidence and testimony adduced at trial in support of the informed consent claim [were] inextricably bound up with the claim for negligence.... ” In their reply brief, appellants phrase their contention as follows: If, as [a]ppellants contend, the issue of informed consent was improperly submitted to the jury, then the entire verdict must fall because it cannot be ascertained to what extent the jury’s determination as to negligence was influenced by its conclusions with respect to informed consent. We disagree with the contention that the issues presented to the jury on the verdict sheet as Questions 1 and 2 (what appellants call the “negligence” claim) were “inextricably in ⁶⁸⁷ tertwined” with Questions 3 and 4 (the lack of informed consent questions) “because both were grounded in Dr. Arrabal’s failure to deliver.” The informed consent claim was not grounded on a failure to timely deliver the triplets but rather on the theory that Dr. Arrabal had a duty to explain to Mrs. Crew-Taylor on October 18 the pros and cons of not immediately delivering the babies. The second argument (that a new trial is required because the testimony as to the informed-consent theory “was inextricably bound up” with the claim for “negligence”) likewise is not persuasive. Our review of the record discloses that the evidence presented concerning Questions 1 and 2 (called the “negligence claim” by appellants) was not inextricably bound up with testimony as to whether Dr. Arrabal had breached his duty to provide informed consent.

The expert witnesses testified as to these issues separately. The argument in appellants’ reply brief is based on the implied premise that the jury may have answered Questions 1 and 2 in the affirmative because the jurors believed that Dr. Arrabal was not negligent in delaying delivery for one day but breached his duty to provide informed consent to his patient. The implied premise is illegitimate in light of the answers given to the first four questions on the verdict sheet when read in conjunction with the informed consent instruction given to the jury, viz: Before providing a specific type or course of medical treatment in a situation where you have a mentally competent adult patient in non-emergent circumstances, a physician has a duty to obtain the consent of the patient after disclosing to the patient: one, the nature of the condition to be treated; two, the nature of the treatment being proposed; three, the probability of success of that treatment; four, the alternatives, if any, to the proposed treatment; and five, every material risk of negative consequences of the treatment being proposed. A material risk is a risk that the physician knows or ought to know would be significant to a reasonable person ⁶⁸⁸ who is being asked to decide whether to consent to a particular medical procedure or treatment.

The purpose of the required explanation is to enable the patient to make an intelligent and informed choice about whether to undergo the treatment being proposed. A physician is liable for any injury caused by the physician’s failure to disclose to the patient a material risk. The jury was instructed separately as to Questions 1 and 2. Under such circumstances, we are not persuaded that the answers to Questions 1 and 2 might have been different had the court not instructed as to informed consent and had withdrawn Questions 3 and 4.

Appellants contend, in the alternative, that at a minimum a new trial as to damages must be ordered because there is no way to determine what non-economic damages were awarded to Mrs. Crew-Taylor as a result of the lack of informed consent count and what non-economic damages were awarded to her due to Dr. Arrabal’s negligent delay in delivering the triplets. Recently, in Mole v. Jutton, 381 Md. 27, 38-40 , 846 A.2d 1035 (2004), the Court of Appeals made it clear that a claim based on the informed consent doctrine sounds in negligence. Thus, in Count III of their complaint, appellees presented two separate negligence theories to the jury. The first theory was asserted when plaintiffs incorporated by reference into Count III allegations that Dr. Arrabal had deviated from the applicable standard of care by failing to deliver the triplets on October 18 when he first received the “non-reassuring” test results.

The second negligence theory set forth in Count III was that Dr. Arrabal had violated Mrs. Crew-Taylor’s rights by electing to forego. an immediate Caesarian section until October 19 without advising her of the options available (i.e., delivering the babies immediately). It is oftentimes the case in medical malpractice actions that the plaintiff will have two alternative theories as to why a treating physician is negligent. For example, if a doctor negligently performs an operation and the patient suffers ⁶⁸⁹ surgical complications due to that negligence and also performs that operation without the patient’s informed consent, the patient may proceed on the two negligence theories simultaneously, viz: the theory that plaintiffs suffered injuries because the doctor negligently performed the operation and the alternative theory that, if the defendant had provided the patient with the necessary information prior to surgery, a reasonable patient in the plaintiffs position would have declined the surgery. In the foregoing hypothetical, no matter what theory prevailed, the damages would be the same.

The situation presented in the case at hand is also analogous to one where a plaintiff attempts to prove liability for an automobile accident by contending that the negligent driver was an agent of his parents and contending, in the alternative, that, even if no agency relationship existed, the parents were liable under a theory of negligent entrustment. These are simply two alternative means of proving liability of the parents. But whichever alternative is chosen, the amount of damages will not change. In the subject case, counsel for the plaintiffs never suggested in their closing arguments that the damages would be any different if liability were founded on the answers to Questions 1 and 2 rather than upon the answers to Questions 3 and 4, which were directed to the lack-of-informed-consent theory. 5 Likewise, the court’s instructions contained no such suggestion.

Under the lack of informed consent theory, appellees maintained that, if Mrs. Crew-Taylor had been properly informed, a reasonable person in her position would have opted on October 18 to have an immediate Caesarian section. If ⁶⁹⁰ that were sufficient to prove lack of informed consent (it was not), the damages to Mrs. Crew-Taylor (death of her child) would have been identical to those caused by the negligent failure to perform an immediate Caesarian section on October 18. No matter what theory was chosen, the damages to Che’s estate and to Che’s parents would not have changed. 6 Thus, a new trial is not warranted even though the court erred in submitting the