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Lack of informed consent can trigger a medical malpractice claim

Do doctors in Maryland or any other state have a duty to inform an organ transplant donor regarding the chances of the organ recipient surviving with the new organ? That is the main issue raised in a medical malpractice lawsuit by a deceased donor's estate against the three surgeons who performed the transplant operation. The donor was a 56-year-old male who donated 60 percent of his liver for transplantation to his brother-in-law who suffered from both end-stage liver disease and liver cancer.

The lawsuit alleges that the donor would not likely have offered his liver if he had known that the recipient had stage 3 cancer and would probably die anyway. The trial recently began in a state court in another state. An expert on health law and ethics testified that the defending surgeons did not give the donor sufficient information on which to make an informed decision.

The decedent's widow testified that the lead surgeon in the case told her husband that the recipient of the liver had a good shot at a long life if he received the liver transplant. Other witnesses have challenged that assessment as being incorrect. One witness testified that patients with advanced liver cancer have a 20 percent chance of survival.

This is a medical malpractice case that is based on the duty of informed consent. When doctors fail to give the patient sufficient information about the surgery and its outcome, that is a breach of duty that can support a finding of negligence against the doctors. The news reports on the case do not indicate whether the operation itself was performed negligently, but it is reported that the decedent died on the operating table after a six-hour ordeal. Such cases are rare in Maryland and other states because the loss of a donor is not a common outcome of such procedures.

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