BOEHM, J.
We hold that, with possible exceptions not relevant here, incurred risk is not a defense to medical malpractice based on negligence or lack of informed consent. We also hold that the plaintiff’s consents to prior surgeries were admissible to counter her lack-of-informed-consent claim to the extent that claim was based on failure to inform her of typical risks in the procedure. We reverse and remand for a new trial.
Brenda Spar brought this medical malpractice action against obstetrician/gynecologist Jin S. Cha, who performed laparoscopic surgery on Spar in 2001. Spar alleged negligence in failing to advise her of less risky procedures and also failure to obtain informed consent.
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We agree with the Court of Appeals that assumption of risk whether in the express, primary, or secondary sense has little legitimate application in the medical malpractice context. As the District of Columbia Court of Appeals has explained, the disparity in knowledge between professionals and their clientele generally precludes recipients of professional services from knowing whether a professional’s conduct is in fact negligent. Morrison v. MacNamara, 407 A.2d 555, 567 (D.C. 1979) (citations omitted); accord Smith v. Hull, 659 N.E.2d 185, 194 n.6 (Ind. Ct. App. 1995) (Sullivan, J., concurring). As a result, there is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than ‘ordinary care’. . . .” Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 884 (Del. Super. Ct. 2005). The patient is entitled to expect that the services will be rendered in accordance with the standard of care, however risky the procedure may be. We do not agree with the Court of Appeals that failure to follow instructions is the only exception, but we need not address under what other circumstance the defense may apply.
Moreover, even if the incurred-risk defense is available in some medical malpractice cases, the record in this case is devoid of any evidence that Spar somehow incurred the risk of negligent care. Spar’s claim was that Dr. Cha was negligent for not completing a more comprehensive fertility workup and instead performing a risky, non-emergent surgery. Spar’s signing of the preoperative consent form, her discussion with Dr. Cha of the risks of the surgery, and her decision to undergo the procedure do not address her claim that the advice to proceed was negligently given. Accordingly, Dr. Cha’s incurred-risk defense to Spar’s claim of negligent advice was not supported by the evidence and should not have been submitted to the jury.
Indiana Code section 34-18-12-8 in fact provides that [a] patient may refuse to receive some or all of the information appropriate in an informed-consent disclosure. Many jurisdictions recognize either by judicial ruling or statute that a patient may waive her right to informed consent. . . . But a patient who waives informed consent assumes only those risks associated with nondisclosure. Presumably this would preclude the patient from claiming she would not have proceeded if disclosure had been made. But a waiver of informed consent does not assume risks associated with negligent performance of the underlying procedure or treatment. In any event, there is no evidence that Spar waived her right to informed consent or otherwise assumed the risks related to negligent nondisclosure. Incurred risk was therefore not a defense to Spar’s lack-of-informed-consent claim and should not have been submitted to the jury.
We conclude that it was error for the trial court to deny Spar’s motion for judgment on the evidence and to instruct the jury on incurred risk. The jury rendered a general verdict, so we are unable to tell whether it found that Dr. Cha was non-negligent or that Spar incurred the risk of injury. We therefore reverse the judgment of the trial court and remand for a new trial.
The second issue is whether the trial court properly admitted evidence of Spar’s consent to prior surgeries.
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The evidence at issue here was of Spar’s consent to the surgeries performed by Drs. Shabeeb and McKinnon. Both doctors testified that they informed Spar of various risks associated with their abdominal procedures. Dr. Cha offered the evidence to refute Spar’s lack-of-informed consent theory and to show that Spar incurred the risk of surgery. We have already held that incurred risk was inapplicable in this case. The prior-consent evidence was therefore not admissible to support Dr. Cha’s incurred-risk defense. The remaining question is whether the evidence was relevant and admissible on the issue of informed consent.
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The prior consents were not relevant to Spar’s claim of negligence in failing to advise of alternative, less risky treatment. But Spar’s lack-of-informed-consent theory was, at least in part, that Dr. Cha failed to properly apprise her of the risks associated with the abdominal laparoscopic procedure. Spar also testified that she would not have consented to the surgery had Dr. Cha informed her that the procedure could result in a bowel perforation which would necessitate additional treatment. Two issues at trial, therefore, were to what extent Dr. Cha was required to disclose information about bowel injury and other surgical risks, and whether Spar would have actually chosen to forego the procedure had Dr. Cha properly informed her of all risks and potential complications.
Spar’s understanding of the risks from her prior abdominal surgeries was relevant to both of these issues. If Spar had been made aware of typical complications by Dr. McKinnon and Dr. Shabeeb and already had a thorough appreciation of the common risks from invasive abdominal procedures, the jury was entitled to take her knowledge into consideration when assessing whether she would have declined surgery in light of more comprehensive disclosure. For these reasons, Spar’s prior consents were relevant and admissible, and the trial court did not err by permitting Dr. Cha to introduce them.
This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
We hold that, with possible exceptions not relevant here, incurred risk is not a defense to medical malpractice based on negligence or lack of informed consent. We also hold that the plaintiff’s consents to prior surgeries were admissible to counter her lack-of-informed-consent claim to the extent that claim was based on failure to inform her of typical risks in the procedure. We reverse and remand for a new trial.
Brenda Spar brought this medical malpractice action against obstetrician/gynecologist Jin S. Cha, who performed laparoscopic surgery on Spar in 2001. Spar alleged negligence in failing to advise her of less risky procedures and also failure to obtain informed consent.
. . . .
We agree with the Court of Appeals that assumption of risk whether in the express, primary, or secondary sense has little legitimate application in the medical malpractice context. As the District of Columbia Court of Appeals has explained, the disparity in knowledge between professionals and their clientele generally precludes recipients of professional services from knowing whether a professional’s conduct is in fact negligent. Morrison v. MacNamara, 407 A.2d 555, 567 (D.C. 1979) (citations omitted); accord Smith v. Hull, 659 N.E.2d 185, 194 n.6 (Ind. Ct. App. 1995) (Sullivan, J., concurring). As a result, there is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than ‘ordinary care’. . . .” Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 884 (Del. Super. Ct. 2005). The patient is entitled to expect that the services will be rendered in accordance with the standard of care, however risky the procedure may be. We do not agree with the Court of Appeals that failure to follow instructions is the only exception, but we need not address under what other circumstance the defense may apply.
Moreover, even if the incurred-risk defense is available in some medical malpractice cases, the record in this case is devoid of any evidence that Spar somehow incurred the risk of negligent care. Spar’s claim was that Dr. Cha was negligent for not completing a more comprehensive fertility workup and instead performing a risky, non-emergent surgery. Spar’s signing of the preoperative consent form, her discussion with Dr. Cha of the risks of the surgery, and her decision to undergo the procedure do not address her claim that the advice to proceed was negligently given. Accordingly, Dr. Cha’s incurred-risk defense to Spar’s claim of negligent advice was not supported by the evidence and should not have been submitted to the jury.
Indiana Code section 34-18-12-8 in fact provides that [a] patient may refuse to receive some or all of the information appropriate in an informed-consent disclosure. Many jurisdictions recognize either by judicial ruling or statute that a patient may waive her right to informed consent. . . . But a patient who waives informed consent assumes only those risks associated with nondisclosure. Presumably this would preclude the patient from claiming she would not have proceeded if disclosure had been made. But a waiver of informed consent does not assume risks associated with negligent performance of the underlying procedure or treatment. In any event, there is no evidence that Spar waived her right to informed consent or otherwise assumed the risks related to negligent nondisclosure. Incurred risk was therefore not a defense to Spar’s lack-of-informed-consent claim and should not have been submitted to the jury.
We conclude that it was error for the trial court to deny Spar’s motion for judgment on the evidence and to instruct the jury on incurred risk. The jury rendered a general verdict, so we are unable to tell whether it found that Dr. Cha was non-negligent or that Spar incurred the risk of injury. We therefore reverse the judgment of the trial court and remand for a new trial.
The second issue is whether the trial court properly admitted evidence of Spar’s consent to prior surgeries.
. . . .
The evidence at issue here was of Spar’s consent to the surgeries performed by Drs. Shabeeb and McKinnon. Both doctors testified that they informed Spar of various risks associated with their abdominal procedures. Dr. Cha offered the evidence to refute Spar’s lack-of-informed consent theory and to show that Spar incurred the risk of surgery. We have already held that incurred risk was inapplicable in this case. The prior-consent evidence was therefore not admissible to support Dr. Cha’s incurred-risk defense. The remaining question is whether the evidence was relevant and admissible on the issue of informed consent.
. . . .
The prior consents were not relevant to Spar’s claim of negligence in failing to advise of alternative, less risky treatment. But Spar’s lack-of-informed-consent theory was, at least in part, that Dr. Cha failed to properly apprise her of the risks associated with the abdominal laparoscopic procedure. Spar also testified that she would not have consented to the surgery had Dr. Cha informed her that the procedure could result in a bowel perforation which would necessitate additional treatment. Two issues at trial, therefore, were to what extent Dr. Cha was required to disclose information about bowel injury and other surgical risks, and whether Spar would have actually chosen to forego the procedure had Dr. Cha properly informed her of all risks and potential complications.
Spar’s understanding of the risks from her prior abdominal surgeries was relevant to both of these issues. If Spar had been made aware of typical complications by Dr. McKinnon and Dr. Shabeeb and already had a thorough appreciation of the common risks from invasive abdominal procedures, the jury was entitled to take her knowledge into consideration when assessing whether she would have declined surgery in light of more comprehensive disclosure. For these reasons, Spar’s prior consents were relevant and admissible, and the trial court did not err by permitting Dr. Cha to introduce them.
This cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.