Spar v. Cha

Summary

The Indiana Supreme Court held that incurred risk generally is not a defense to medical malpractice claims based on negligence or lack of informed consent, subject to possible exceptions not relevant to the case. It further held that evidence of the plaintiff's consent to prior abdominal surgeries was admissible to address her knowledge of typical surgical risks in connection with her informed-consent claim. The court reversed the judgment and remanded for a new trial.

Holdings

1. With possible exceptions not relevant to the case, incurred risk or assumption of risk is not a defense to medical malpractice based on negligence or lack of informed consent because a patient does not consent to relieve a healthcare provider of the professional standard of care merely by accepting a risky medical procedure.
2. The evidence did not support submitting incurred risk to the jury on Spar's claim that Dr. Cha negligently recommended a risky surgical procedure instead of a more comprehensive fertility workup.
3. A patient may waive the right to receive some or all informed-consent information, but a waiver assumes only risks associated with nondisclosure and does not assume risks of negligent performance. The record contained no evidence that Spar waived informed consent or assumed the risks related to negligent nondisclosure.
4. Spar's prior consents to abdominal surgeries were relevant and admissible to the extent her lack-of-informed-consent claim alleged nondisclosure of typical risks associated with abdominal laparoscopic surgery.

Questions Presented

1. Whether incurred risk or assumption of risk could be submitted as a defense to Spar's medical-malpractice claims based on negligent medical advice and lack of informed consent.
2. Whether Spar's consent to prior abdominal surgeries was relevant and admissible to rebut her lack-of-informed-consent claim.
3. Whether the trial court's errors required reversal of the general verdict and a new trial.

Disposition

reversed_and_remanded