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A surgeon has a legal duty, except in emergency circumstances, to obtain the "informed consent" of the patient before undertaking the surgical procedure. The surgeon's duty is to explain the procedure to the patient and to warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment. The proper test for measuring a physician's duty to disclose risk information is whether such data would be material to the patient's decision. In this regard, A material risk is one 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 submit to a particular medical treatment or procedure. The cause of action for lack of informed consent is one in tort for negligence, as opposed to battery or assault.
Dr. Rudolf Almaraz, an oncological surgeon specializing in *** cancer with operative privileges at the Johns Hopkins Hospital (Hopkins) in Baltimore, knew himself to be HIV-positive, i.e. a carrier of the HIV virus, since 1986. On October 7, 1988, Almaraz performed a partial mastectomy and axiliary dissection on Sonja Faya at Hopkins. He removed an axillary hematoma from Faya the following March. On November 14, 1989, again at Hopkins, Almaraz surgically excised a benign lump from the *** of Perry Mahoney Rossi. The therapeutic outcome of these operations is not in dispute. Almaraz gave up his practice of medicine on March 1, 1990. He terminated his association with Hopkins in June of that year. He died of AIDS on November 16, 1990. Faya and Rossi learned of their physician's illness for the first time from a local newspaper on or about December 6, 1990, well over a year after Rossi's operation and twenty months after Faya's last contact with Almaraz. Both Faya and Rossi immediately underwent blood tests for the AIDS virus, which came back negative for both. Nevertheless, by December 11 Sonja Faya, Perry Mahoney Rossi, and her husband, Dennis T. Rossi (appellants), filed suit against Almaraz's estate, his Maryland professional association business entity, and Hopkins (appellees) for compensatory and punitive damages.
Did a surgeon infected with the AIDS virus have a legal duty to inform patients of that condition before operating upon them?
The court held that because it was foreseeable that Almaraz might transmit the AIDS virus to appellants during surgery, the court could not say, as a matter of law, that Almaraz owed no duty to appellants. The court also held that appellants could recover for their fear and emotional distress to the extent they could demonstrate their existence, up until the time they learned they were HIV-negative.