A physician loses a malpractice case due to a known complication:
At trial, Wagner, OHSU’s lawyer, told the jury that Ackerman’s injury was a known risk of the surgery, and Ackerman had signed the consent form acknowledging that his doctor had educated him on complications.
But of course, “money was never the issue.”
Related posts:
- Should the informed consent discussion be formally taught?
- Psychiatrists and informed consent
- Informed consent is central to the doctor-patient relationship
- He said, she said: Does informed consent discussions need to be videotaped?
- Does a physician’s bias color the informed consent discussion?
- Informed consent gone wrong
- Getting consent . . .
KevinMD.com on Facebook
{ 36 comments }
Kevin, per usual, is being deliberately misleading.
First, informed consent does not excuse negligence. The physician was clearly negligent, as the article makes clear:
“In the operating room Dec. 15, 2003, though, West inserted the wire too deeply, and the pointed tip punctured Ackerman’s spinal cord.
Carlson, the young surgical resident who had never before assisted in the procedure, testified that he watched a monitor as West inserted the wire. Carlson said he noticed the wire was in the wrong place but said nothing because the monitor provided a limited view.”
Are you really arguing that inserting the wire to the point it punctures the spinal cord is within the standard of care?
What’s more, it is highly unlikely that the consent form said – “Hey, this doctor is immune if he commits negligence by puncturing your spinal cord.”
When physicians sue, don’t they sue for money? It’s always humorous to see physicians chastise others for caring about money. Is there a group of people in this country who whine more about money than doctors?
Yeah. Lawyers.
After that, patients who don’t want to pay their co-pay.
News flash: neurosurgery is hard. Mistakes (like slipping with probe) can happen to anyone and are not automatically negligent. That is why partial paralysis is a known complication and listed on the IC form.
And the answer is: working wealthy people complain about money more than anyone else, especially the poor. This is how they get wealthy.
The issue is whether the physician is negligent. Suffering a known complication of surgery, whether disclosed or not, does not necessarily constitute negligence. Beyond this, $1 million in “punitive” damages is theft. Unless the injury was intentional and with malice, this should not be permitted. Punitive damages are not covered by malpractice insurance.
It is very sad that Oregon had a chance at tort refrom several years ago and the tort lawyers convinced the populace to pass. I trust the neurosurgeon in question is in law school, as he now has learned the hard way that it simply is not worth it to be in medical practice. I also bet the injured party chose this surgeon based on an excellent reputation at an academic medical facility where the doctor was a recognized expert. Furthermore, I bet the surgeon, operating on a local celebrity, was being as careful as possible to avoid complications. Truly a tragedy for all involved; only the lawyers ultimately win.
What kind of a crap judge would let a punitive jury finding stand absent a finding of malice?
Is there a profession that thinks itself above reproach that can set their own standards and never worry for the consequences? ( I know what your thinking.) Of course there is: state trial court judges.
How do you become a state trial court judge? Is that an appointed position?
An informed consent form is not the same as Agent 007’s License To Kill.
“Is there a profession that thinks itself above reproach that can set their own standards and never worry for the consequences? ( I know what your thinking.)”
Yep, you’re right. I just read an article in our morning paper — seems a group of local surgeons has decided go ahead and build a surgicenter (our third) even though they were denied a certificate of need by the state. The group’s spokesman is quoted as saying, “We don’t need one.”
Well GTL as you well know that little snippet is hard to make any conclusions. But one line is disturbing
“But Ackerman testified that West never told him that a spinal cord injury was a risk of the neck surgery”
Even though there was an informed consent. Please tell me how this guy could not know this. I also wouldn’t rely on a junior resident’s (sounded like an intern) opinion of nedle plancement. Of course we don’t know what the medical experts had to say about it. And of course they would tailor there story based on who was paying their bill (or you wouldn’t allow them on the stand). 1 mil in punitive damages for a guy he is working and playing tennis? Seem like a little disconect there. I don’t expect you to argue the point since you would make 400K off the deal.
“Yep, you’re right. I just read an article in our morning paper — seems a group of local surgeons has decided go ahead and build a surgicenter (our third) even though they were denied a certificate of need by the state. The group’s spokesman is quoted as saying, “We don’t need one.” “
It is possible they are correct. Do you really think they would construct a facility if that were unlawful?
Doubtful.
If the use of the facility does not anticipate the charging of Medicare or Medicaid claims, for example, with a facility for elective cash-pay surgery, then they probably don’t need one. A CON is an economic barrier placed to prevent new construction where existing facilities enjoy reduced competition for business. Granting a CON has absolutely nothing to do with the quality of the facility or the safety of its operations. In fact, it has nothing to do with “need” either. My guess is that the facility you speak of exceeds all current OSHA and Medicare standards for construction and operations; they just aren’t having to seek a CON and don’t see the lack of one as a barrier to the use of the facility as anticipated.
More power to them. CON laws are nothing more than political pork for hospitals that make plenty of money and just don’t want any competition.
A Lawyer asking a girl out to the prom: I’m not interested in taking you to the prom for your pussy or a piece of ass. It’s not about that. I just want what’s right for you.Sound familiar or similar?
You’ve got a wrong idea, Kevin, that you keep stubbronly clinging to despite multiple corrections.
Informed consent of known complications is not supposed to be and never was some kind of carte blanche to cause the complication through error or other negligence, nor is it supposed to be a mitigating factor against injury caused by negligence.
Why can you not disabuse yourself of this notion? It’s as if you have a big legal logic blind spot.
Informed consent prevents the patient from claiming that you never told him about the expected negative effects of a procedure or of things that are known to go wrong frequently enough to warn the patient.
That’s a tort all on its own.
It has nothing to do with whether negligent error is the cause of the complcation. If the patient can prove it, he’s entitled to be compensated for injuries caused by negligence.
“Why can you not disabuse yourself of this notion? It’s as if you have a big legal logic blind spot.”
Actually, like many of these physician commentators, it’s a massive ego/compensation blind spot. They cannot comprehend that they can screw up, nor that they should be held liable for their screwups, particularly if it might cost them some money. Immunity is their goal, and secrecy and distortion of the facts are the best way to obtain it in their estimation.
You can’t really single out Kevin, for the truth is anathema to them all. Try and get one to testify even when they know malpractice occurred and you’ll see what I’m talking about. Their professed concerns for their patients quickly fade away in the name of protecting the wallets of their own.
“Immunity is their goal, and secrecy and distortion of the facts are the best way to obtain it in their estimation. “
No, going to work and taking care of patients is our goal, not having nightmares, physical and mental illness and planning to use our free time to go to some Plaintiff Lawyers office to defend our actions when some Crack addict dropped dead in our ER after a Crack Binge and now her family is suing because we didn’t get to her fast enough. That’s your “negligent error”.
“not having nightmares, physical and mental illness”
Well, at least you’re honest about your condition.
“having nightmares, physical and mental illness”
I’m sorry that you’re put through this, but the fact is, many patients suffer the exact same thing when a medical procedure goes wrong — and no one, repeat no one, from the clinic or hospital will talk to them about it. That does NOT justify a lawsuit at all, but it certainly creates an environment that breeds them — and you have control over that environment.
“That does NOT justify a lawsuit at all, but it certainly creates an environment that breeds them — and you have control over that environment.”
The environment you discuss is the one where bad outcomes occur. No matter what I do, Young people will get sick, young people will die. It’s called Nature. Just because a young person gets sick or dies should not mean an automatic payday for the family or a 30% windfall for an attorney, 40% if he can sue his own client after and win.
You’re right, it shouldn’t. And it doesn’t, as the Studdert study pointed out. But just because people are going to die eventually, doesn’t mean you’re entitled to immunity if your negligence hastens that death.
“just because people are going to die eventually, doesn’t mean you’re entitled to immunity if your negligence hastens that death.”
Then why don’t you sue negligent physicians, instead of suing physicians who happen to be standing there holding the chart when a bad outcome occurs?
Why don’t you offer to give a deposition pre-suit and you won’t be named. It’s that simple.
“Why don’t you offer to give a deposition pre-suit and you won’t be named. It’s that simple.”
Because we can’t volunteer to do anything for you pieces of human shit with “ESQ” after you names.
“Why don’t you offer to give a deposition pre-suit and you won’t be named. It’s that simple.”
If I could predict the future, I’d just buy a winning lottery ticket instead. I’ve been sued three times, and the only time I knew I was going to be sued before I was served was when the process server was in my waiting room.
“Why don’t you offer to give a deposition pre-suit and you won’t be named. It’s that simple.”
What a line of shit. I have been sued 5 times. They have been dropped or will be dripped after years of cost and agony because they are bullshit. And like the other doctor above, the first that I knew about the suit was WHEN I WAS SERVED WITH IT
The “sodomites” don’t deserve their name. It is being disrespectful to child molestors. Heretofore they will be referred to as “human pieces of shit”
So none of you have offered to give an early depo and get out of the case, correct?
Mostly just whined and complained. How do you overcome? Do you have spirituals, like the slaves of old, that help you to deal with the awesome amounts of oppression that the lawyers are putting on you?
I can almost hear you humming them now.
Whiny bitches.
What is this idiocy you keep harping about “giving an early depo” – do you have a learning disability? The posters above tell you that they first time they have heard about the suit is when they got served; how are you able to neglect that?
I have had the experience of being notified that my case was closed, the verdict was in, and that I could not appeal – and that was the first time I ever heard that there even was a case – but then I live in a socialist country.
The Human piece of shit thinks we realize we’re being sued when we send a patient home with an ingrown toenail and the patient drops dead at home after doing too much cocaine, like we have a camera on them. They may lay off us, JAMA just announced that Vioxx is deadly (Like Merck planned it that way) all the Human pieces of shit may swarm to suing Merck like green flies on dogshit.
“The posters above tell you that they first time they have heard about the suit is when they got served; how are you able to neglect that?”
What do you think “early” means?
Here’s how it works. They get served. They tell their insurer. Their insurer gets an attorney who files an answer denying everything. Takes about 3 hours tops. Then, if you really want out, give a depo. It’s that easy.
Cost your insurer probably $2500 tops.
Again, quit crying.
What the hell are you talking about. In a few weeks I have to give a deposition after being served on a patient I never even saw. The shitheads are hoping I’ll say something to implicate myself or the other docs in a frivolous case. “That’s it”? They will bring as many of us to trial as they can, its like shaking a tree to see what falls out. The only thing that costs $2500 is the high priced hooker who sucks off the plaintiff’s attorney after he steals the healthcare systems money.
Still crying, I see.
The only crying that will be going on is you, when you get the Avian flu, the hospitals are overflowing with patients, you’re lying in a pool of your own blood-filled shit in the waiting room, and there’s no healthcare professional to see you because you’re a lawyer and you guys have alienated any decent human being from even wiping your putrid ass once you’re dead so your family doesn’t have to smell your shit. Like they do now. Bedtime, I’ll go pray by the side of my bed that this happens to you.
Still crying like when your daddy whipped you after he saw you watching mommy take a piss, eh?
C’mon little fella, buck up and be a man. You can still do it, I’m sure.
Anon 10:59
You know what an ad hominium argument is? You should because you are making one.
By the way there were no “punitive” damages in this case. This was inaccurately (but widely) reported by the media – the $1m was for non-economic damages (pain & suffering, etc.)
Comments on this entry are closed.