McQuitty v. Spangler

BATTAGLIA, J. In this case we explore the boundaries of the doctrine of informed consent in the context of a healthcare provider’s treatment of a patient. Petitioner, Peggy McQuitty, mother of Dylan McQuitty, who was born on May 8, 1995 with severe cerebral palsy, sued Dr. Donald Spangler in the Circuit Court for Baltimore County. In addition to alleging medical malpractice, Ms. McQuitty alleged that he breached his duty to obtain her informed consent to treatment, when he failed to inform her, after she consented to hospitalization and treatment for a partial-placental-abruption, 1 of risks and available alternative treatments related to material changes in her pregnancy, those being a second partial-placental-abruption, oligohydramnios, 2 and intrauterine growth restriction. 3 ⁴ During a trial in April of 2004, a jury returned a verdict in favor of Dr. Spangler on the medical malpractice claim, but could not reach a verdict on the informed consent claim. A second trial, only addressing the informed consent issue, took place in September of 2006, and the jury awarded the McQuittys $13,078,515.00 in damages.

Dr. Spangler moved for judgment notwithstanding the verdict, which the trial judge granted, holding that, “it is well established in Maryland that the doctrine of informed consent pertains only to affirmative violations of the patient’s physical integrity.” The McQuittys appealed to the Court of Special Appeals, which, in an unpublished opinion, affirmed, on the same basis as that relied upon by the trial judge. The McQuittys petitioned this Court for certiorari, which we granted, McQuitty v. Spangler, 406 Md. 744 , 962 A.2d 370 (2008), to address two questions, which we have reordered: I. Does an informed consent claim exist under Maryland law in the absence of damages caused by a battery committed by the physician?

II

Does an informed consent claim exist under Maryland law where a physician withholds material information from his patient about changes in her medical status, which would have negated her consent to further delay in operative treatment, causing harm? 4 ⁵ We shall hold that an informed consent claim may be asserted by a patient in the absence of a battery or affirmative violation of the patient’s physical integrity, because it is the duty of a health care provider to inform a patient of material information, or information that a practitioner “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.” Sard v. Hardy, 281 Md. 432, 444 , 379 A.2d 1014, 1022 (1977). I. Facts We adopt the facts set forth by the Court of Special Appeals in its unreported opinion: Peggy McQuitty was twenty-eight weeks pregnant when admitted to Franklin Square Hospital Center on March 30, 1995. While she was a patient at Franklin Square Hospital, Dr. Spangler, an obstetrician, was her primary attending physician. The physical complaint which brought her to the hospital was vaginal bleeding.

Dr. Spangler ordered that an ultrasound be performed. That ultrasound revealed a partial placental abruption, which is a premature separation of the placenta from the uterus. This condition is irreversible and can lead to fetal death. There is no cure or treatment that will restore the function of that tissue once it has become detached from the uterus.

And, the greater the extent or degree of placental separation, the greater the reduction of the perfusion of oxygen and nutrients to the fetus and the greater the risk of fetal morbidity. Given Mrs. McQuitt/s prior history of having delivered another child by Cesarean section, coupled with the presence of the partial abruption, Dr. Spangler concluded that Mrs. McQuitty could not safely deliver her child vaginally. He believed that for her to deliver a child at that stage would entail too great a risk that the placenta could separate completely from the uterus during labor, which would cause fetal death. Because Mrs. McQuitty had experienced only a partial abruption and as a consequence a portion of the placenta remained attached to the uterus and was ⁶ functioning as of March 30, 1995, Dr. Spangler developed a plan to deliver the baby by Cesarean section at a later date.

As part of his plan, Mrs. McQuitty was kept at the hospital from March 30, 1995, until Dylan was delivered thirty-nine days later on May 8,1995. The management plan adopted by Dr. Spangler included physically invasive actions, such as establishing intravenous access for the administration of intravenous fluids and medications; serial injections of Betamethasone, a corticosteroid, and other medications; the insertion of a urethral foley catheter for urine collection and analysis; and the performance of serial blood extractions for hematologic studies. After Dr. Spangler formulated the aforementioned plan, the only question was when the delivery would be performed. The timing of the Cesarean section delivery, and the circumstances under which it would be performed, affected the relative risk to the unborn infant.

Delaying an operative Cesarean section increased the risk of further separation of the placenta from the uterine wall, which was not predicable and, according to expert testimony introduced by the plaintiffs, “could occur at any time.” Further, abruption of the placenta would leave the fetus with diminished oxygen, and a complete abruption would leave the fetus without a source of oxygen at all, and would lead to almost immediate death. On the other hand, an immediate delivery by Cesarean section on March 30, 1995, posed a risk of fetal morbidity due to fetal lung immaturity. The risk associated with prematurity, however, would necessarily decrease over time, as the baby matured and as appropriate medical interventions were implemented. In addition, Mrs. McQuitty’s preexisting hypertension, coupled with the partial placental abruption, would tend to “stress” the fetus and accelerate the natural production of fetal surfactant, which over time would reduce the risk of respiratory difficulties associated with prematurity.

Dr. Spangler met with Mr. and Mrs. McQuitty after he diagnosed the partial placental abruption on March 30,1995, ⁷ and informed them that if the placenta continued to separate from the uterus, then the baby would have to be immediately delivered by Cesarean section. Based upon this information from Dr. Spangler, Mr. And Mrs. McQuitty understood that if their son were delivered by immediate Cesarean section on March 30, 1995, he would not likely survive. The next day, Mrs. McQuitty’s condition stabilized with a substantial decrease in the amount of vaginal bleeding. Based upon the information previously provided to her by Dr. Spangler, Mrs. McQuitty consented to Dr. Spangler’s management and treatment plan, which was to delay the Cesarean section and otherwise to permit continued administration of intravenous fluids, medicines, etc. Over the next few weeks, Mrs. McQuitty told Dr. Spangler that she wanted to return home.

Dr. Spangler persuaded her not to leave because “there was a very slight possibility that what happened [on March 30, 1995] could happen again,” and in light of the fact that the McQuittys lived fifty minutes away, it was important that she stay at the hospital. Mrs. McQuitty was under the impression “that if something happened—even though it wasn’t very likely—I was better off being in the hospital because that would—right off the bat they wouldn’t have to wait for me to get there for fifty minutes.” The plan, according to Mrs. McQuitty, was “barring any emergent situation,” they would wait until she was thirty-six weeks along and test to see if Dylan’s lungs were mature and then decide what to do. On April 12, 1995, an ultrasound examination revealed evidence of a new and significant abruption. Although the medical records show that Mrs. McQuitty was informed of the abruption, she testified that she did not remember receiving such information.

She testified that she would have remembered being told if she had been advised as to this type of problem with her pregnancy. On April 28, 1995, another ultrasound revealed the development of an intrauterine growth restriction (“IUGR”). An IUGR develops as a direct result of the decreased perfusion ⁸ of nutrients to the developing fetus resulting from an abruption. Fetuses that develop IUGR are at an increased risk for intrauterine fetal death, resulting from inadequate nutrition.

The ultrasound examination also revealed that the infant’s estimated fetal weight had fallen below the 10th percentile for his gestational age. Mrs. McQuitty acknowledged at trial that Dr. Spangler informed her of the IUGR. She claimed, however, that the explanation provided by Dr. Spangler was inadequate because it left her with the mistaken impression that the test simply revealed that her baby would be small. Accordingly, she believed that she simply needed to eat more and drink milk shakes.

Even in light of the latest ultrasound findings Dr. Spangler did not offer Mrs. McQuitty the option of having an immediate Cesarean section on April 28,1995. On May 3, 1995, an ultrasound examination revealed a significantly low level of amniotic fluid, a condition known as oligohydramnios. Because amniotic fluids act as a buffer against incidental or abnormal compression of the umbilical cord, a significantly low level of amniotic fluid presents the risk of harm to the fetus. Mrs. McQuitty alleges that Dr. Spangler only told her that the test revealed that the baby was not doing well and that it would be necessary to take her to labor and delivery immediately.

Shortly thereafter, however, Dr. Spangler told Mrs. McQuitty that the baby would not be delivered that day and that she was to return to her room and drink plenty of water because her fluid level was low. Mrs. McQuitty asked Dr. Spangler “can’t we please just get this baby out?” She then told her doctor, “I have been here for four or five weeks. Everything is apparently fine. I am tired of being here.

I want to go home. I want to be with my husband and my daughter. Please take this baby.” Dr. Spangler replied that the longer that she could keep the baby, the better off the infant would be. ■ Mrs. McQuitty experienced a complete abruption on May 8, 1995, requiring an immediate emergency Cesarean section. ⁹ At the second trial, the parties entered into the following stipulation: 1) That, the permanent, neurologic injuries suffered by the plaintiff, Dylan McQuitty, resulted solely from his mother’s complete abruption which occurred on May 8, 1995. 2) That, Donald Spangler, M.D., did not offer Peggy McQuitty the option or alternative of electively delivering her baby by Cesarean section at any time prior to her complete abruption on May 8,1995. 3) That, the plan of the Defendant, Donald Spangler, M.D., after Peggy McQuitty was admitted to Franklin Square Hospital on March 30, 1995, was always to deliver her baby by repeat1 Cesarean section. 1 The McQuittys' first child was also delivered by Cesarean section. Testimony introduced by the McQuittys at trial demonstrated that if Dylan had been delivered at any time between April 12, 1995, through the early morning hours of May 8, 1995, then he would have been a normal, healthy baby.

II

Procedural History On September 5, 2001, the McQuittys filed a complaint in the Circuit Court for Baltimore County against Dr. Donald Spangler, Dr. Harrold Elberfeld, the professional association Glowacki, Elberfeld & Spangler, and Franklin Square Hospital. 5 Against each defendant, the McQuittys alleged one count of medical malpractice and one count of breach of informed consent. 6 The McQuittys’ medical malpractice claim was based on the following allegations, in pertinent part: ¹⁰ 13. The Defendant, Donald Spangler, M.D., owed to the Plaintiff and to his mother a duty to exercise that degree of care, skill and judgment ordinarily expected of a reasonably competent practitioner of his chosen specialty acting in the same or similar circumstances, which duty included the performance of adequate and proper tests and procedures to determine the nature and severity of the conditions of the Plaintiff and/or his mother; the careful diagnosis of such conditions; the employment of appropriate procedures and treatments to correct such conditions; the continuous evaluation of the effects of such treatments; the adjustment of the course of treatment in response to such evaluations; and the appropriate notification to the Plaintiffs mother, Peggy McQuitty, of the various alternatives and risks involved in various modalities of treatment. 14. On or about October 19, 1994, the Plaintiffs mother, Peggy McQuitty, came under the medical care of the Defendants, Donald Spangler, M.D.; Harrold Elberfeld, M.D. and Drs. Glowacki, Elberfeld & Spangler, P.A., for prenatal obstetrical care and services related to her pregnancy with an estimated date of delivery of June 22,1995. 15.

On or about March 30, 1995, the Plaintiffs mother, Peggy McQuitty, was admitted to Franklin Square Hospital Center, Inc. with vaginal bleeding. The Plaintiffs mother was assessed as having a partial placental abruption. 16. On or about April 12, 1995, the Plaintiffs mother, Peggy McQuitty, submitted to an obstetrical ultrasound which was reported as revealing a “new” abruption. 17. A repeat obstetrical ultrasound performed on or about April 28, 1995 to “rule out IUGR” confirmed a fetal weight of less than the 10th percentile for 32.9 weeks and a gestational age by ultrasound of 29.2 weeks. 18.

On or about May 4, 1995, the Defendant, Donald Spangler, M.D. canceled the one hour fetal heart monitoring which the Plaintiffs mother, Peggy McQuitty, was receiving and ordered that she be sent for antepartum testing each Monday and Thursday at 9:00 a.m. for nonstress testing and amniotic fluid index assessment. ¹¹ 19. By May 7, 1995, it was noted that the blood pressure of the Plaintiffs mother, Peggy McQuitty, had risen as high as 160/78 and a repeat of 150/84 despite antihypertension medication. Proteinuria was also noted. 20. On or about May 8, 1995, at 1:50 p.m., the Plaintiffs mother, Peggy McQuitty, noted a pinkish discharge in the toilet.

She was placed upon an electronic fetal heart monitor, and a fetal heart rate in the 60’s was noted. 21. The Plaintiffs mother, Peggy McQuitty, was taken to the operating room at Franklin Square Hospital Center, Inc. for a stat Cesarean section delivery and the Plaintiff, Dylan McQuitty, was delivered by Cesarean section at or about 2:12 p.m. He was resuscitated in the delivery room and transferred to the Neonatal Intensive Care Unit. The Plaintiff, Dylan McQuitty, remained an inpatient at Franklin Square Hospital Center, Tnc. until June 9, 1995. 22.

The Plaintiff further alleges that as a result of the inadequate and inappropriate management of the prenatal care of his mother, Peggy McQuitty, by the Defendant, Donald Spangler, M.D., Dylan McQuitty suffered grievous injuries and complications including, but not necessarily limited to, perinatal asphyxia, hypoxic-ischemic encephalopathy, global developmental delay, seizure disorder and permanent and irreversible brain damage. 23. The negligent and careless acts and omissions of the Defendant, Donald Spangler, M.D., individually and through his agents, servants and/or employees, include but are not necessarily limited to the following: a. Failing to employ adequate diagnostic procedures and tests to determine the nature and severity of the medical status and/or condition(s) of the Plaintiff, Dylan McQuitty, and his mother, Peggy McQuitty; b. Failing to employ appropriate treatments and procedures to correct such condition(s); c.

Failing to exercise reasonable care in evaluating the effects of any treatments chosen to address or correct such condition(s); ¹² d. Failing to exercise reasonable care in adjusting the chosen course of treatment or care provided to the Plaintiffs mother, Peggy McQuitty, in response to information available or obtained from diagnostic tests or procedures, including, but not limited to, fetal heart monitoring and ultrasound examinations; e. Failing to communicate or consult with and otherwise obtain the services of a competent perinatologist or neonatologist to provide advice, guidance, care and treatment to the Plaintiffs mother, Peggy McQuitty, and to manage her prenatal care and labor and delivery of the Plaintiff, Dylan McQuitty; f. Failing to exercise reasonable care in the performance and interpretation of physical examinations, diagnostic tests, ultrasonography and other antenatal surveillance procedures employed during the prenatal care of the Plaintiffs mother, Peggy McQuitty; g.

Failing to deliver the Plaintiff, Dylan McQuitty, in a careful and expeditious fashion; h. Failing to appropriately and adequately obtain an informed consent from the Plaintiffs mother Peggy McQuitty; i. Failing to require the physicians and other care providers involved in the care and treatment of the Plaintiffs mother, Peggy McQuitty, to report and otherwise advise this Defendant of all medically significant developments in the condition of the Plaintiffs mother, Peggy McQuitty, and/or the Plaintiff, Dylan McQuitty; and j. Being otherwise careless and negligent.

The McQuittys asserted the following in support of their informed consent claim: 27. The Defendant, Donald Spangler, M.D., owed to the Plaintiff the duty of appropriate notification to the Plaintiffs mother, Peggy McQuitty, of the various alternatives and risks involved in various modalities of treatment. ¹³ 28. The Defendant, Donald Spangler, M.D., failed adequately obtain an informed consent from the Plaintiffs mother, Peggy McQuitty, and was otherwise negligent. 29. As a result of the negligence of the Defendant, Donald Spangler, M.D., his agents, servants and/or employees, the Plaintiff, Dylan McQuitty, experienced a severe shock to his nerves and nervous system, pain, and mental anguish.

As a direct result thereof, the Plaintiff underwent surgery and unnecessary procedures, and he has been and will continue to be obliged to receive hospital and medical care; he has been and will continue to be prevented from engaging in his usual activities, duties and pursuits; and he has incurred and will continue to incur medical expenses in the future, and has been otherwise injured and damaged. 30. The Plaintiff further alleges that the parents of the minor Plaintiff are financially unable to provide for the past and future medical care and treatment that the minor Plaintiff requires as a direct and proximate result of the negligence of the Defendant, his agents, servants and/or employees. 31. All of these injuries and damages were caused by the negligence of the Defendant, Donald Spangler, M.D., individually, and through his agents, servants and/or employees, without any negligente] on the part of the Plaintiff and/or his parents thereunto contributing. A trial was held in April of 2004; the jury returned a verdict in favor of defendants, Dr. Spangler and Glowacki, Elberfeld & Spangler, P.A., on the medical malpractice count, but failed to reach a decision on the informed consent claim.

Two years later, a second trial took place solely on the issue of informed consent. Before trial, Dr. Spangler moved for summary judgment, raising, for the first time, the argument, which he has since maintained, that he had no duty to tell Mrs. McQuitty about the second partial-placental abruption, the intrauterine growth restriction, the option of an earlier Cesarean section, or the risks and alternative procedures associated therewith, because he initially obtained her informed con ¹⁴ sent to treatment, that being to prolong the pregnancy, and thereby had no duty to obtain her informed consent to anything other than that which involved a proposed or actual “affirmative invasion of her physical integrity”; the judge denied the motion. During trial, Dr. Spangler reiterated his position on informed consent in his motion for directed verdict: In this case, Your Honor clearly, there was no proposed treatment which would have violated the physical integrity of Mrs. McQuitty. This was a decision solely to prolong the pregnancy.... [Bjased on a long line of Maryland law ... unless there’s some proposed treatment which would violate the physical integrity of the patient, informed consent doesn’t apply, and the issue is to judge whether a breach of the professional standard of care occurred or not.

In response to that motion, Mrs. McQuitty asserted that Dr. Spangler had an obligation to inform her of material information regarding her ongoing treatment in the hospital, pursuant to our holding in Sard v. Hardy, 281 Md. 432 , 379 A.2d 1014 (1977), and alternatively, that even if an affirmative physical invasion were legally required, that she had met her burden of proof with evidence of a planned Cesarean section. The trial judge took the parties’ arguments under advisement and reserved ruling. During the discussion regarding jury instructions, the McQuittys requested Maryland Civil Pattern Jury Instruction 27:4, which states that: Before a physician provides medical treatment to a patient, the physician is required to explain the treatment to the patient and to warn of any material risks or dangers of the treatment, so that the patient can make an intelligent and informed decision about whether or not to go forward with the proposed treatment. This is known as the doctrine of informed consent.

In fulfilling the duty to disclose, the physician is required to reveal to the patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the proposed treatment and any alternatives, and the material ¹⁵ risks of unfortunate outcomes associated with such treatment. A “material risk” is defined as “a risk 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 have the particular medical treatment or procedure.” The physician’s duty to disclose material risks to the patient is based upon an objective standard rather than a subjective standard. This means that the question of whether a risk is a “material risk” is based upon whether a reasonable person in the position of the patient would have considered the risk to be a material risk. Whether the patient would have consented to the procedure, if informed of the risk, is a relevant factor to be considered, but is not conclusive.

The physician is not required to divulge all risks, but only those which are material to the intelligent decision of a reasonably prudent patient. Dr. Spangler asserted the need for two additional instructions aimed specifically at the issue of “whether there was an affirmative violation of Mrs. McQuitty’s physical integrity.” The judge denied Dr. Spangler’s motion and gave the Pattern Jury Instruction. The jury returned a verdict in favor of the McQuittys on behalf of Dylan in the amount of $13,078,515.00, of which $156,000.00 was attributed to past medical expenses and costs, while $8,422,515.00 was for future medical and rehabilitation care and costs, $1,000,000.00 was for loss of future earning capacity, and $3,500,000.00 was attributed to past and future physical and emotional pain and suffering and loss of enjoyment of life. Dr. Spangler thereupon moved for judgment notwithstanding the verdict, raising the same arguments as mustered in his motion for summary judgment and directed verdict, and for remittitur.

In a written opinion, the judge granted Dr. Spangler’s motion, concluding that there was “no rational ground upon which a verdict can be maintained” because there was no “affirmative violation of Mrs. McQuitty’s physical integrity”: ¹⁶ [I]t is well established in Maryland that the doctrine of informed consent pertains only to affirmative violations of the patient’s physical integrity. Landon v. Zorn, 389 Md. 206, 230 , 884 A.2d 142 (2005); see also Reed v. Campagnolo, 332 Md. 226, 242-43 , 630 A.2d 1145 (1993); Arrabal v. Crew-Taylor, 159 Md.App. 668, 684 , 862 A.2d 431 (2004). Although the pattern jury instructions on informed consent uses the general term, “treatment,” Maryland courts have consistently limited the doctrine to actual violations of the patient’s bodily integrity—most commonly surgical procedures and injections. See MPJI-Cv 27:4 (2006); compare Sard, 281 Md. 432 , 379 A.2d 1014 (bilateral tubal ligation failed to prevent conception) and Goldberg v. Boone, 396 Md. 94 , 912 A.2d 698 (2006) (during a revisionary mastoidectomy, an inexperienced physician accidentally punctured his patient’s brain) with Landon, 389 Md. 206 , 884 A.2d 142 (doctrine inapplicable when a doctor did not recommend a diagnostic test for flesh-eating bacteria); Reed, 332 Md. 226 , 630 A.2d 1145 (same result when doctor did not offer a test for birth defects); and Arrabal, 159 Md.App. 668 , 862 A.2d 431 (same result when doctor did not offer an emergency Cesarean section after detecting fetal distress).

In addition, to sustain a claim for lack of informed consent, the patient’s injuries must have arisen out of the affirmative violation. Landon, 389 Md. at 230 , 884 A.2d 142 . To allow otherwise would severely encumber the physician-patient relationship, cause unnecessary hardship to medical practitioners, and create a profound overlap with the scope of professional negligence. The McQuittys appealed to the Court of Special Appeals, reiterating the same arguments that they raised at trial.

A panel, in an unreported opinion, affirmed the order granting judgment notwithstanding the verdict, holding, as the lower court did, that pursuit of a claimed violation of the doctrine of informed consent could provide no relief for the McQuittys in the absence of an “affirmative violation of the patient’s physical integrity”: ¹⁷ In the case sttb judice, it was undisputed that the injury suffered by Dylan arose not from an affirmative violation of Mrs. McQuitty’s physical integrity, but arose, instead, from the “complete abruption which occurred on May 8, 1995.” In other words, according to evidence introduced by the plaintiffs, the injury occurred because Dr. Spangler failed to timely perform a Cesarean section; the harm caused to Dylan was not due to any operation or any other affirmative violation of the patient’s physical integrity on Dr. Spangler’s part.

III

Discussion The McQuittys, citing our seminal case of Sard v. Hardy, 281 Md. at 432 , 379 A.2d at 1014 , argue that it is well established that an informed consent claim is separate from that for medical malpractice, and that “artificial restrictions] borrowed from the law of battery,” such as the requirement of an “affirmative invasion of the physical integrity of the patient,” have no place in the doctrine of informed consent, as defined in Sard . To this end, the McQuittys argue that Mrs. McQuitty and Dylan were receiving ongoing treatment from Dr. Spangler during the period in which Mrs. McQuitty was admitted to the hospital and placed on bed rest, and that Dr. Spangler had a “continuing duty to inform Mrs. McQuitty of material changes in her condition or that of her baby,” as well as risks and alternative treatments associated therewith, material to Mrs. McQuitty’s decision-making regarding whether to continue a preestablished course of treatment. Mrs. McQuitty alternatively asserts that were this Court to require proof of an affirmative physical invasion, that requirement was met by her treatment plan established after the first partial-placental abruption, which consisted of hospitalization; intravenous access for the administration of fluids and medications; serial injections of Betamethasone, a corticosteroid, and other medications; the insertion of a urethral foley catheter for urine collection and analysis; and the performance of serial blood extractions for hematologic studies. ¹⁸ Dr. Spangler counters that in Landon v. Zorn, 389 Md. 206, 230 , 884 A.2d 142, 156 (2005), and Reed v. Campagnolo, 332 Md. 226, 242 , 630 A.2d 1145, 1153 (1993), we determined that the duty to obtain informed consent arises only when a medical treatment or procedure has been proposed by a physician involving an “affirmative violation of the patient’s physical integrity.” He points out that he never proposed that Mrs. McQuitty undergo a Cesarean section prior to May 8, 1995, when it became medically indicated. Breach of informed consent and medical malpractice claims both sound in negligence, but are separate, disparate theories of liability.

See, e.g., Landon, 389 Md. at 230 , 884 A.2d at 156 (upholding a trial judge’s decision to instruct the jury on a medical malpractice theory of liability, but not on an informed consent theory); Reed, 332 Md. at 240-41 , 630 A.2d at 1152-53 (holding that a failure to recommend a diagnostic procedure is properly an allegation of medical malpractice, not one of breach of informed consent); Faya v. Almaraz, 329 Md. 435, 447-51 , 620 A.2d 327, 333-35 (1993) (holding that patients stated a proper cause of action sounding in negligence when they alleged that the physician breached a duty to obtain their informed consent by failing to inform them that he was infected with the AIDS virus before operating, without alleging that physician breached the standard of care in performing the procedure); see also Zeller v. Greater Baltimore Medical Center, 67 Md.App. 75, 81-82 , 506 A.2d 646, 650 (1986) (“The rendering of medical services absent informed consent, if pled properly, constitutes a separate and new count of negligence.”). In a count alleging medical malpractice, a patient asserts that a healthcare provider breached a duty to exercise ordinary medical care and skill based upon the standard of care in the profession, see, e.g., Dehn v. Edgecombe, 384 Md. 606, 618 , 865 A.2d 603, 610 (2005) (“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.”) (internal quotations and citations omitted), while in a breach of informed consent count, a patient complains that a healthcare provider breached ¹⁹ a duty to obtain effective consent to a treatment or procedure by failing to divulge information that would be material to his/her decision about whether to submit to, or to continue with, that treatment or procedure. See Sard, 281 Md. at 444 , 379 A.2d at 1022 . Our first holding regarding a physician’s duty to provide a patient with information to enable the patient’s choice about whether to submit to a particular therapy or procedure was in Sard, 281 Md. at 432 , 379 A.2d at 1014 .

In that case, Mrs. Sard had consented in writing to a sterilization procedure, concurrent with a Cesarean section delivery of her second child. Without discussing alternative sterilization methods or that there was a higher, 2% failure-rate associated with a tubal ligation when performed during a Cesarean section, Dr. Hardy unilaterally decided to perform, and did perform, a tubal ligation. The tubal ligation was unsuccessful; Mrs. Sard became pregnant with another child and instituted suit, alleging that Dr. Hardy “negligently failed to advise [the Sards] that the surgical procedure employed by him was not absolutely certain to succeed and that [he] failed to apprise the Sards of the potential results of the operation and alternative methods of sterilization, thereby precluding [them] from giving their informed consent.” Id. at 435 , 379 A.2d at 1017 . At the close of the Sard’s case, the judge directed a verdict, holding that Mrs. Sard’s written consent to the operation was dispositive.

The Sards appealed to the Court of Special Appeals, which held that the physician had a “duty ... to make an adequate disclosure of substantial facts which would be material to the patient’s decision,” but, nevertheless, affirmed the judgment because the 2% risk of failure was not considered a material risk. Sard v. Hardy, 34 Md.App. 217, 231 , 367 A.2d 525, 533 (1976). We granted certiorari and reversed, holding that consent must be “informed” to be effective, id. at 439, 379 A.2d at 1019-20 , and that under the informed consent doctrine, a healthcare provider has a duty to provide a patient with all information material to the patient’s assessment about whether to submit to a particular therapy or procedure. Id. at 444 , ²⁰ 379 A.2d at 1019-20 .

We began our analysis by recognizing that the requirement that consent be “informed” is derived from the “universally” recognized common law rule that a healthcare provider obtain a patient’s consent to treatment: The doctrine of informed consent, which we shall apply here, follows logically from the universally recognized rule that a physician, treating a mentally competent