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USEFUL INFORMATION Informed consent goes beyond agreeing to a procedure to explain risks, benefits and possible side effects.In most malpractice lawsuits, an expert medical witness must demonstrate that some sort of medical negligence contributed to an adverse outcome. That is slowly changing, however, as several states have applied their civil rights laws to medical malpractice, and several other states are looking to do the same. This means we're now seeing more and more patients claim civil rights violations that essentially allege malpractice, but sidestep the need for expert testimony. As the following case shows, this could signal more legal headaches for surgical facilities.
Uninformed consent
Amanda Crider, a deaf woman who relies on sign language interpreters, claimed that she notified staff upon her admission to Barnes-Jewish St. Peters (Missouri) Hospital that she desired to have a natural childbirth without an epidural or other pain medications unless absolutely necessary.
However, after she gave what she said was her "uninformed consent," Ms. Crider did receive an epidural. In her subsequent lawsuit, Ms. Crider claimed the injection caused persistent physical pain and disabling symptoms associated with epidural procedures. While the hospital reportedly encouraged her to have the epidural, Ms. Crider claims the facility didn't provide an interpreter to explain why they felt the injection was necessary.
Instead of providing an affidavit of probable medical negligence when filing the lawsuit — per Missouri law — Ms. Crider claimed her civil rights were violated, which eliminated the need for expert testimony. A trial court dismissed the case on the grounds that Ms. Crider didn't file the appropriate healthcare affidavit, and that she hadn't met the requirements for establishing medical negligence.
MALPRACTICE ROUNDUP
Expert Testimony Takes
Center Stage in Malpractice Claims
Expert testimony can make or break a malpractice lawsuit. Consider these recent cases, as reported by Outpatient Surgery Magazine, that underscore the critical role of the expert witness.
• Lack of expert testimony dooms patient's malpractice claim. A patient filed a malpractice claim against an orthopedic group for leaving a pain pump catheter fragment lodged in her shoulder. During the trial, the patient's attorney argued that the negligence of the physician assistant who removed the pump was self-evident, negating the need for expert testimony. However, a board-certified orthopedic surgeon, called by the defendants as an expert witness, claimed that catheter fracture during removal is a known risk that doesn't necessarily indicate negligence. Rather, the breakage of an intra-articular catheter is more likely a result of the catheter's design, he said. A trial court ruled against the patient, finding that expert testimony was required to justify the lawsuit, given the various theories as to how the catheter broke.
• Misplaced IV line didn't cause post-op complications. A woman diagnosed with complex regional pain syndrome sued a hospital for malpractice, claiming that a misplaced IV triggered the complications that disabled her right arm and required surgical and therapeutic treatment. Through its attorneys and an expert witness, the hospital contended that IV site pain isn't always caused by infiltration or extravasation, and that the causes of complex regional pain syndrome aren't completely known or understood. In January, a Florida court ruled in favor of the facility, rejecting the patient's claim that the IV line's placement led to her complications.
Visit www.outpatientsurgery.net/news for the latest breaking news stories.
— Jon-Marc Weston, MD, FACS
Dr. Weston ([email protected]) is the medical director of the Vision Surgery and Laser Center in Roseburg, Ore.
Steer clear of civil rights claims
In Ms. Crider's case, the hospital may very well have failed to adequately accommodate a disabled patient, and it seems a failure to provide the right paperwork may have largely been what tripped up her claim.
Many civil rights claims that are ostensibly malpractice suits may meet a similar fate. But that doesn't make them any less costly and time-consuming. And we're likely to see a run on malpractice suits framed as civil rights violation cases, especially if the House of Representatives bill (H.R. 5) mandating limits on medical malpractice lawsuit awards comes to fruition.
These types of cases usually arise from a lack of effective communication with the patient and their family before the procedure. This discussion, which should be documented, should outline the risks, benefits, side effects and possible outcomes of the surgery, as well as the consequences of not having the procedure done.
"Informed" is the key to the concept of "informed consent." In the Crider case, the patient was reportedly encouraged to have the epidural. But it's entirely possible that the purpose of the injection and its potential side effects weren't adequately explained to her. Patients often agree to a procedure being performed without truly understanding the risks and benefits involved. Give the patient the opportunity to make decisions about their treatment based on the entirety of the facts. Simply having and documenting this discussion is not only beneficial for the patient, but should be an effective safeguard in the event a patient comes back to allege that your surgery center violated her civil rights.
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