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Professional Associations and Hospitals Are Not Proper Subjects of Informed Consent Lawsuits, Absent Special Circumstances

Robertson v. Iuliano
CA No.: RDB-10-1319 (U.S. Dist. Court for the District of Maryland, December 10, 2012)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

In this case, the Honorable Richard D. Bennett dismissed a lawsuit against a Baltimore hospital and neurosurgery practice, finding that they could not be held liable for a surgeon’s alleged failure to obtain a patient’s informed consent.

In the underlying case, Plaintiff Rodney Anthony Robertson (“Plaintiff” or “Robertson”) brought a medical malpractice action against Defendants Brian A. Iuliano, M.D. (“Dr. Iuliano”), Neurosurgery Services, LLC (“Neurosurgery”) and St. Agnes Healthcare, Inc. (“St. Agnes”) (collectively “Defendants”) alleging that the Defendants failed to obtain his informed consent to a back surgery he underwent on June 22, 2006. He sought damages in the form of loss of income, medical bills and other damages associated with the infection he contracted as a result of the surgery.

The case began with Plaintiff suffering a back injury in February of 2006. He was referred to a surgeon, Dr. Iuliano, by his primary care physician. Dr. Iuliano was employed by Neurosurgery and had privileges at St. Agnes Hospital. Dr. Iuliano, however, was not employed by St. Agnes. During Plaintiff’s initial meeting with Dr. Iuliano, Dr. Iuliano recommended that Plaintiff undergo surgery, and Plaintiff agreed. There is no record of any informed consent. After the surgery, Robertson developed an infection which required him to undergo two (2) additional surgeries. Robertson testified in a deposition that he neither knew nor cared who Dr. Iuliano’s employer was.

Defendants St. Agnes and Neurosurgery filed motions for summary judgment, contending that they were not liable for the alleged lack of informed consent. The Court noted that Maryland law imposes the doctrine of informed consent exclusively on the physician. Courts only extend the duty to obtain informed consent to the hospital in two (2) situations: 1) if the hospital specifically assumed the duty or 2) if the physician was an agent of the hospital.

In considering St. Agnes’s motion for summary judgment, the Court agreed that St. Agnes did not specifically assume the duty of informed consent, in spite of the fact that St. Agnes supplied informed consent forms to assist physicians in obtaining a record of a patient’s informed consent. In addition, there was no evidence of actual or apparent agency between Dr. Iuliano and St. Agnes that would give rise to a duty on the part of St. Agnes to obtain Robertson’s informed consent. Therefore, the Court granted St. Agnes’ motion for summary judgment.

Defendant Neurosurgery argued that it was not liable for Dr. Iuliano’s alleged failure to obtain informed consent, because the duty to obtain informed consent was the nondelegable duty of the physician. In addition, while there was admittedly actual agency between Dr. Iuliano and Neurosurgery, Neurosurgery contended that it was not vicariously liable because in seeking informed consent, Dr. Iuliano and Neurosurgery were not in a master-servant relationship. The Court noted that no Maryland court had ever addressed the precise issue of whether the duty to obtain informed consent could be imposed on a physician’s employer. The Court looked to Pennsylvania authority, which it found persuasive. The Superior Court of Pennsylvania in Valle v. Albert Einstein Medical Center, 758 A.2d 1238, 1245 (Pa. Super. 2000), held physicians were not acting as servants of hospitals when obtaining informed consent. Although Neurosurgery was Dr. Iuliano’s employer, Dr. Iuliano had the exclusive control over the manner in which he performed his duty to obtain informed consent. Therefore, Dr. Iuliano was not acting as a servant of Neurosurgery when seeking Plaintiff’s informed consent. Accordingly, the Court awarded summary judgment in favor of Defendant Neurosurgery Services, LLC, as well. The case as to informed consent will proceed as against the physician, Dr. Iuliano, only.