Comments on: http://www.kevinmd.com/blog/2005/04/patient-wins-malpractice-suit-for.html Tue, 14 Feb 2012 19:56:00 +0000 hourly 1 By: Anonymoushttp://www.kevinmd.com/blog/2005/04/patient-wins-malpractice-suit-for.html#comment-52390 Anonymous Sun, 10 Apr 2005 20:48:00 +0000 http://clients.emmense.com/kevinmd/2005/04/18121.html#comment-52390 Good grief. <br/>Warning the patient of known complications of a procedure is protection against an informed consent lawsuit.<br/><br/>It is not an automatic protection or defense against lawsuit if the complication occurs. You still have to perfom the procedure, and manage complications that might occur, provide adequate folow-up, etc, to the prevailing standard of care.<br/><br/>For example, you might warn me of bleeding. If I bleed to death, that doesn't protect you if it happened because you were negligent. Good grief.
Warning the patient of known complications of a procedure is protection against an informed consent lawsuit.

It is not an automatic protection or defense against lawsuit if the complication occurs. You still have to perfom the procedure, and manage complications that might occur, provide adequate folow-up, etc, to the prevailing standard of care.

For example, you might warn me of bleeding. If I bleed to death, that doesn’t protect you if it happened because you were negligent.

]]> By: Anonymoushttp://www.kevinmd.com/blog/2005/04/patient-wins-malpractice-suit-for.html#comment-52387 Anonymous Sun, 10 Apr 2005 05:07:00 +0000 http://clients.emmense.com/kevinmd/2005/04/18121.html#comment-52387 Anonymous, your last post illustrates your ignorance of the legal system. Negligence is not an element of a tort, because it IS the tort. And you just laid out the elements of negligence. And courts don't have to prove anything, the plaintiff does.<br/><br/>And since you have to prove it pre-trial to the judge, at the trial to the jury and again to the judge, and post trial to the appellate court, it's not as easy as you'd like to think it is. <br/><br/>You should read "A Civil Action" for a good and very readable idea of what a civil lawsuit involves. Good book regardless of what you do for a living. Don't judge it by the movie. Anonymous, your last post illustrates your ignorance of the legal system. Negligence is not an element of a tort, because it IS the tort. And you just laid out the elements of negligence. And courts don’t have to prove anything, the plaintiff does.

And since you have to prove it pre-trial to the judge, at the trial to the jury and again to the judge, and post trial to the appellate court, it’s not as easy as you’d like to think it is.

You should read “A Civil Action” for a good and very readable idea of what a civil lawsuit involves. Good book regardless of what you do for a living. Don’t judge it by the movie.

]]> By: Anonymoushttp://www.kevinmd.com/blog/2005/04/patient-wins-malpractice-suit-for.html#comment-52385 Anonymous Sun, 10 Apr 2005 03:09:00 +0000 http://clients.emmense.com/kevinmd/2005/04/18121.html#comment-52385 Well, if courts actually did have to prove all the elements of tort, what you say might be true. But that isn't really how things work in practice. Plaintiff's counsel are keen to try to obscure the notion that negligence is any different from a bad outcome or even simple dissatisfaction, however hard that might be to pin down. Of course, defendant's counsel ought to be just as intent on bointing out these differences. Whether the jury agrees to go along with this is often what determines the outcome, not necessarily whether "negligence" is proven. Negligence is not one of the elements of tort (duty, breach, harm, breach as proximate cause of harm); and it sometimes possible to persuade the jury that negligence is any act--whether in breach of duty or not--that results in an unsatisfactory outcome.<br/><br/>But you knew that. Well, if courts actually did have to prove all the elements of tort, what you say might be true. But that isn’t really how things work in practice. Plaintiff’s counsel are keen to try to obscure the notion that negligence is any different from a bad outcome or even simple dissatisfaction, however hard that might be to pin down. Of course, defendant’s counsel ought to be just as intent on bointing out these differences. Whether the jury agrees to go along with this is often what determines the outcome, not necessarily whether “negligence” is proven. Negligence is not one of the elements of tort (duty, breach, harm, breach as proximate cause of harm); and it sometimes possible to persuade the jury that negligence is any act–whether in breach of duty or not–that results in an unsatisfactory outcome.

But you knew that.

]]> By: Curious JDhttp://www.kevinmd.com/blog/2005/04/patient-wins-malpractice-suit-for.html#comment-52382 Curious JD Sat, 09 Apr 2005 21:09:00 +0000 http://clients.emmense.com/kevinmd/2005/04/18121.html#comment-52382 Actually, Anonymous, persuading the jury to empathize with the client is only useful AFTER you prove negligence. First they have to prove that the actions fell below the standard of care for the area. <br/><br/>How you and Kevin could determine anything about what went before the jury based on that article is beyond me. Is part of being a physician an ability to know what is in records that you've never seen and know testimony you never heard? That's pretty cool if so. Actually, Anonymous, persuading the jury to empathize with the client is only useful AFTER you prove negligence. First they have to prove that the actions fell below the standard of care for the area.

How you and Kevin could determine anything about what went before the jury based on that article is beyond me. Is part of being a physician an ability to know what is in records that you’ve never seen and know testimony you never heard? That’s pretty cool if so.

]]> By: Anonymoushttp://www.kevinmd.com/blog/2005/04/patient-wins-malpractice-suit-for.html#comment-52381 Anonymous Sat, 09 Apr 2005 20:50:00 +0000 http://clients.emmense.com/kevinmd/2005/04/18121.html#comment-52381 The defendant counsel says he wouldn't appeal the verdict? This sounds to me that some pre-verdict agreement was made to settle for no more than the limits of the per-occurence coverage, or some other lesser amount. Sure, cutting the recurrent laryngeal nerve can cause damage, I suppose traction or other manipulation could do the same, but maybe only temporarily.<br/><br/>As to the issue whether discussing a known complication is a guarantee against a claim based on that complication, it isn't. In the end, the plaintiff's counsel only has to persuade the jury to feel sorry enough for the plaintiff to find for his client. It would be nice if they had to show the complication wasn't part of the range of outcomes the patient had accepted as part of giving preoperative consent, but that isn't always true,<br/>and judges seldom throw out cases where the jury<br/>clearly fails to consider this. The defendant counsel says he wouldn’t appeal the verdict? This sounds to me that some pre-verdict agreement was made to settle for no more than the limits of the per-occurence coverage, or some other lesser amount. Sure, cutting the recurrent laryngeal nerve can cause damage, I suppose traction or other manipulation could do the same, but maybe only temporarily.

As to the issue whether discussing a known complication is a guarantee against a claim based on that complication, it isn’t. In the end, the plaintiff’s counsel only has to persuade the jury to feel sorry enough for the plaintiff to find for his client. It would be nice if they had to show the complication wasn’t part of the range of outcomes the patient had accepted as part of giving preoperative consent, but that isn’t always true,
and judges seldom throw out cases where the jury
clearly fails to consider this.

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