A woman claims battery after a medical student botched an intubation

in Uncategorized | 36 responses

Having medical students intubate during elective procedures, under supervision of an anesthesiologist, is common practice. However, this patient specifically wanted no medical students, but the hospital ignored her wishes:

The Indiana Supreme Court is considering whether a woman who had to have a second surgery after a medical student tore her esophagus during a botched procedure was a victim of battery.
Attorneys for W- Ruth Mullins say she signed documents saying she didn’t want students in the operating room, but doctors ignored her wishes.
Her attorney, Sherrill Colvin, says the case fits the definition of battery because harm resulted after the student inserted a tube in Mullins’ throat.

Comments

Okulus
Unless the supervising attending told the medical student not to touch the patient, or the patient refused the approach of that student, it sounds like a weak claim.
Patients can’t just demand anything they want when they go to the hospital (I still remember one woman in L&D who requested to me–an intern then–that no black housestaff be involved in her care. Totally offensive and unreasonable; I ignored her request). The patient’s option if they don’t like the home club rules is to check out AMA.
Since it seems to be on the appellate court, someone must have been unwilling to accept the findings of a lower court. My guess is that the lower court upheld the criminal complaint, otherwise I doubt the state would have seen further merit, no matter what the patient says she wanted done or not done beforehand.
Most teaching hospitals require consent for participation of residents and medical students as part of routine admission; that is pretty clearly understood when you go to a teaching hospital.
The patient will just have to make do with a malpractice claim against the attending without the slam-dunk reinforcement of a criminal conviction against the student.
That patient seems mean-spirited, to say the least.
And what role does her attorney have in this? Since when do private citizens and their attorneys pursue criminal complaints themselves. Please don’t tell me they are afforded special prosecutor status in matters like this.
Claire
I don’t know about battery, but it does look like they should have refused to do the surgery if they disagreed with what she had written on the informed consent. They didn’t do that, though. Isn’t the whole purpose of informed consent that the patient is aware of and accepts the possible risks & benefits of the procedure? It doesn’t sound like she accepted the risks that come with being intubated by a medical student.
anonymous
I don’t know the particulars, but in general the patient should not have gone to a teaching hospital if she did not want students/residents involved in her care.
NoAcuteDistress
Once again it is difficult to make sense of this layan’s complaint in a lay newspaper. What the hell is meant by “tearing the esopghagus?” That could mean a scratchin thepharynx, or a true esophageal perforation with life threatening mediastinitis. There’s no wayof knowing form this account.
And as far as the idea that the patient “should have known” that a medical student would be involved in her care…. I sympathize with the sentiment, but c’mon we live in a country populated by unbelievably STOOPID people who haven’t seemed to have gotten the message that smoking is dangerous to your health. Of course it doesn’t help that there are legions of Sodomites who actively help dumb down the population.
Claire
anonymous, I agree with you but they should have refused to do the surgery if they didn’t agree with her. It would have saved them a world of hurt.
SarahW
Okulus, wrong, wrong, wrong in this case.
Patients do have the legal right to refuse treatment by students, interns and residents in a hospital setting and to specify that they be treated only by persons who have completed training.
A hospital does not have the right to demand patient be treated by any medical professional in training, and the hospital can generally not deny care because of such a request.
The intubation by the student is a battery, in this case. She did not consent to treatment by an intern.
You are correct that not every demand of a patient must be met.
It would be illegal to assign staff to patients on the basis of race, and the hospital can refuse a request that demand a hospital act illegally.
Okulus
Sarah W:
The issue is whether a crime of battery was committed, not whether the patient consented to any procedures by others besides her attending. I don’t think that is in dispute (going by the news story, facts assumed there).
The patient may express a wish not to be treated by trainees. That aside, many teaching hospitals have general consent to have trainees participate in care as part of admissions paperwork. But whether consent was given or not isn’t the issue here. The issue is whether the lack of consent constituted battery. The patient evidently thinks it does, but that does not necessarily make it so. Requirements such as intent to do harm are at issue, not merely doing harm in the course of performing a medical procedure, even if unconsented. So far, I see no case for malice. And of course that has no bearing on civil matters of tort, except that if a criminal conviction of A/B is obtained, the civil finding of tort becomes easier for the plaintiff.
So incorrect Sarah W, not “wrong, wrong, wrong”, as you say.
D.P.
I was married to a soldier and did not have the opportunity to go to a hospital that wasn’t a training hospital. At this hospital, I was given the opportunity to decline having a student examine me, etc. At first, I allowed the students. Later, I became tired of being examined twice and declined. I was pregnant at the time, and the hospital respected my wishes. I can’t imagine asking for students not to be involved in my care, then having my wishes completely disregarded. I don’t know the particulars of this case, but patients do have rights. If a person doesn’t want a med student involved in his/her care, the patients wishes should be respected–even at a training hospital.
D.P.
“But Justice Frank Sullivan argued that the law requires that harm be intended to fit the definition of battery.”
Okay, I’m not big on lawsuits, but if a hospital knows that a patient doesn’t want a med student performing a procedure, and it allows this anyhow regardless of the patients wishes . . . Well, let’s look at this from a different perspective:
Let’s say I’m on a date with a hot football player. I tell him that I’m a virgin, and that I want to wait until I’m married to have sex. But we are having fun at a party, and I drink a little to much and pass out. My hot football player friend decides that I’m asleep so he will have sex with me anyhow–he doesn’t plan to do any harm. But I wake up, bruised and hurting. I realize what happened and feel violated. I go to the hospital and report a rape.
If this were true, legally I have been raped. Does this not translate to the hospital scenario, or are medical professionals above consent?
Okulus
That last example is a total straw man. Suppose this patient coded in the hospital and was known by the staff that she didn’t want any students participating in her care in any way (hey, you brought up datew rape as the extreme–and irrelevant–example). A nurse, someone who is trained discovers the patient in arrest and calls for help. A student working on the floor hears the call. Should he go?
You can see how absurd a demand like that of this patient could be made to seem. When you check into a teaching hospital, you have no reasonable right to expect or demand that students and other trainees will not be involved in your care. Yes, they should do what they do under supervision of trained people. But patient autonomy and patient demands are not an absolute and unlimited right, anywhere.
D.P.
As I also stated, some people (military) don’t have a choice regarding training hospitals. So, if a training hospital is your only option, it sounds like you are saying, “tough shit, we do whatever we want to here.” And it is relevant as both examples speak to consent. Your coding example is not relevant.
Okulus
Military hospitals for active duty members are special cases. There are many things active duty members cannot do and their scope of rights are generally more limited as service members. Receiving care can be done under orders, which carry force of law, something for whioch there is no ordinary equivalent outside the military. It may be tough, as you say, but that is how it is. For military dependent family members, the situation is more liberal and they have greater rights, but again, those rights are not unlimited. Military family members also do not have to be seen or treated in military medical facilities, unlike military active duty, who may be required to seek care for non-emergent problems at a military medical facility.
The military case is not a good example, simply because their rights are curtailed by virtue of being on active duty. That is part of what you give up when you raise your right hand and take the oath.
(Been there, done that.)
D.P.
Okay, now you are getting ridiculous. So as a military wife, I should have said “I’d like to go to a civilian hospital so that my rights to not have a medical student present will be respected. As this is a training hospital, I know you won’t respect my wishes.”
It isn’t as easy as you are presenting. Besides, patients wishes should be respected. What do you do when you see DNR? Do you respect that? Do you pick and choose? Look, I’m not saying that there should be a lawsuit here, but we aren’t guinea pigs just because we are at a training hospital–we are still people with choices and rights.
sailorman
The patient is right.
okulus: Just FYI, unwanted treatment is clearly battery and has been established as such in a variety of cases. (they don’t need to mean to hurt her or scare her–perhaps you’re confusing battery and assault?)
The “intent” which is geenrally required is “intent to TOUCH”. If I tell you “don’t touch me” and you then gently stroke my face, you have technically committed battery. That is really all it takes. intentional, unwanted, touching.
The main issue here IMO is going to revolve around consent.
Almost all teaching hospitals involve students in some way. But there is a difference between, say, a student observer and a student participant.
A patient is entitled to set out the exact limits of her consent. The hospital may either decline to treat her, agree to be bound by her limits, or respond with a counteroffer of their own (“we won’t guarantee no students will be involved in your care and we are unwilling to limit their participation in any fashion. Do you want to proceed anyway?”)
What should NOT happen, absent an emergent and unforeseeable situation, is that a patient and the hospital come to an agreement regarding consent which is then violated. If the agreement is breach, liability makes sense. That’s the whole damn POINT of the agreement in the first place.
D.P.
Not only that, but lower enlisted families often can’t afford to go elsewhere for medical care. I know I couldn’t. So, do you think that people should give up their rights because they can’t afford to go to another hospital. Your views really suck.
D.P.
Thank you, Sailorman.
Okulus
d.p. :
You are taking this personally. I don’t make the rules any more than you do. If you have issues with the military health care system, take that up with them. Suffice it to say, you do not have the same freedoms there that you have elsewhere. Dependent family members presently have insurance options (not good ones, however) and can seek care in civilian facilities where they are available. Overseas, where there are not as many options, that might not be as possible. And as I said before, there are limitations to what you can expect and demand.
Battery–as my wikified layman’s understanding of common law goes–requires both an act and an intent (actus reus and mens rea). The act is indisputed. The question then is intent. Clearly the student intended to do what he did (or meant to do), per the story he did what he was told to do by the attending. But was that intent one of malice–to do harm. Probably not. By your comment, you seem to think that the element of intent isn’t even necessary to qualify as battery in a criminal sense.
In my view, the patient has only a civil claim, of tort, against the student and the supervising attending. That is a harder case to prove, as then the issue goes to harm done as a result of malpractice, not merely unwanted touching.
My guess is that the patient and her attorney are trying to set the stage for a high-dollar monetary settlement by prevailing on a criminal complaint.
SarahW
Okulus, the tort of battery requires only infliction of an unwanted touching.
You are still wrong.
Okulus
SarahW: cite evidence, case law, something of substance to justify your statement. Your bare assertion does not convince.
NoAcuteDistress
We STILL don’t know what “harm” was done!!
sailorman
okulus,
I happen to be a lawyer; I’m not lying. Your reading of intent is wrong. I’ve already explained it: You need intent to touch. You don’t need intent to injure.

By your comment, you seem to think that the element of intent isn’t even necessary to qualify as battery in a criminal sense.

That’s your confusion. This is not a criminal case. A criminal case is brought by a prosecutor working for the state, not by a private attorney. Your quote is correct… for CRIMINAL battery.
In my view, the patient has only a civil claim, of tort, against the student and the supervising attending.
Glad you finally figured this out.
“Tort” is not a claim. Tort is an AREA OF LAW that includes battery. Among other things.
That is a harder case to prove, as then the issue goes to harm done as a result of malpractice, not merely unwanted touching.
Trust me on this when I say you’re not really correct here. If you touch me without my consent and perform a medical procedure without my consent, you usually do not get to use the defense of “well, but I wasn’t using malpractice!”
Think about this more and you should understand why not.
Okulus
sailorman: go supra, my first post. The story really doesn’t clarify who is making this charge, the state and the patient, or the patient alone.
The case is in appeals, that is all that is said, except (in the story, linked): “Justice Frank Sullivan argued that the law requires that harm be intended to fit the definition of battery.” So it seems this issue of intent actually is material before the court, your opinion notwithstanding.
lawyersux
sailorman:
Is it totally true then, that if I go to work at a V.A. Hospital or a military base, I’m totally protected from lawsuits? I heard you can’t sue if you’re in the military. I’m thinking of applying because it’ll give me a chance to treat patients like Human Beings and not as Front-men for the lawyers. Let me know if it’;s true please.
sailorman
okulus:
The story is perfectly clear.
This is a civil case. I can tell because she has her own lawyer. People get their own lawyer in only two situations, generally speaking: 1) criminal defendants, and 2) civil cases.
The justice referred to is the trial judge or the intermediate appellate judge. A judge would never comment on a case before him/her. And justicies decide cases; they don’t try them.
And as for my opinion “notwithstanding”, BTW, my opinion is better than your opinion here, because I actually know what I’m talking about. I may be wrong and you may be wrong–but you are much MORE LIKELY to be wrong.
I don’t happen to know this state’s specific laws on battery, though. I’m sure you can find them on the state website if you are so inclined.
LS: I’m not a medmal lawyer. But I have heard that as well.
Okulus
>>”The story is perfectly clear.”
I’m glad you think so. I think it is not so clear. As far as the litigants go, it appears there are matters still in dispute. One is the issue of intent, unless you have more information than the story gives.
>>”This is a civil case. I can tell because she has her own lawyer. “
The story doesn’t say. But then you know as a lawyer that she may have a criminal complaint, prosecuted by the state and a civil complaint based on tort, prosecuted by her Ft. Wayne-based medmal attorney (I couldn’t resist and Martindaled him-not peer reviewed, BTW). And BTW, I’m not that green, there are U.S. jurisdictions that permit special prosecutors in criminal cases paid for by private parties. They function as assistants to state prosecutors in that role.
>>”The justice referred to is the trial judge or the intermediate appellate judge.”
I’ll have to take your word on that. The story doesn’t say.
>>”A judge would never comment on a case before him/her.”
A responsible one wouldn’t, I hope.
There seem to be all types, though.
>>”And justicies decide cases; they don’t try them.”
Yeah, I’m not that green. I have worked here and there on legal matters, but thanks for the civics lesson. Of course, that only goes in the U.S./ British systems. In Europe and elsewhere judges actually do prosecute, but that is off-topic. Forgive the aside.
>>”And as for my opinion “notwithstanding”, BTW, my opinion is better than your opinion here, because I actually know what I’m talking about.”
Taking this personally, aren’t you?
You aren’t rendering a professional opinion on complete facts, so drop the pretense that a blog thread post is in any way a legal opinion. I don’t buy the “I’m a lawyer so my news story opinions are better than yours” train of argument. It sure doesn’t get play around here with other professions.
< <"I actually know what I'm talking about. I may be wrong and you may be wrong--but you are much MORE LIKELY to be wrong."

Counselor, why indulge yourself in such an obvious fallacy of argument?
Why do the esteemed attorneys seem to find matters for dispute that have wended their way to the Indiana Supreme Court, paucity of your insights in the Hoosier state?
sailorman
heh.
Okulus said…
I’m glad you think so. I think it is not so clear. As far as the litigants go, it appears there are matters still in dispute. One is the issue of intent, unless you have more information than the story gives.
Of course there are matters still in dispute. Is that suppoed to be a novel conclusion? If there weren’t matters in dispute, it wouldn’t be in court.
However, the fact that it is a civil case on appeal is pretty damn clear.
The story doesn’t say. But then you know as a lawyer that she may have a criminal complaint, prosecuted by the state and a civil complaint based on tort, prosecuted by her Ft. Wayne-based medmal attorney (I couldn’t resist and Martindaled him-not peer reviewed, BTW).
Yes. 99% of the time the criminal case is tried first; the civil case waits for the criminal result. Maybe even more often than that.
Peer review is a one way street: the LACK of it doesn’t mean much.
And BTW, I’m not that green, there are U.S. jurisdictions that permit special prosecutors in criminal cases paid for by private parties. They function as assistants to state prosecutors in that role.
OK, non-green: Is this jurisdiction one of them? And is this a criminal case? And is this the TYPE of criminal case that is permitted by statute?
Statistically speaking, I’m pretty sure I know the answer. Do you?
I’ll have to take your word on that. The story doesn’t say.
Well, it DOES “say”, if you know how to understand what’s there.
The report may be wrong. Or incomplete. But based on what is in the article, there is only one reasonable conclusion.
Of course, that only goes in the U.S./ British systems. In Europe and elsewhere judges actually do prosecute, but that is off-topic. Forgive the aside.
Glad we can agree that we’re in the right country….
Taking this personally, aren’t you?
No, not at all. I’m a lawyer, remember? Dealing with obnoxious people is my job.
You aren’t rendering a professional opinion on complete facts, so drop the pretense that a blog thread post is in any way a legal opinion. I don’t buy the “I’m a lawyer so my news story opinions are better than yours” train of argument. It sure doesn’t get play around here with other professions.
Whether or not I’m rendering a professional opinion, if it’s a matter in which I happen to be quite knowledgeable, and you do not… chances are, I’m right. And you’re not. I mean, I wouldn’t bother this with most people. But when you told everyone to go google if you were wrong, because you demanded “proof”… well, what am I if not proof?
Counselor, why indulge yourself in such an obvious fallacy of argument?
I look forward to hearing you explain which fallacy of argument applies to a statement of probability based on expert knowledge. If it’s “obvious” that is….
Why do the esteemed attorneys seem to find matters for dispute that have wended their way to the Indiana Supreme Court, paucity of your insights in the Hoosier state?
You’re using “paucity” incorrectly. )Just FYI, since you appear to be trying the “big words” argument tactic.) It’s never worth pointing out people who flip their apostrophes or who misspell misspell… but if you’re going to head for the dictionary to make your point, your choice should be apposite and accurate. Perhaps you meant “irrespective?”
Anyway: if you read my posts, you’ll note that I state common law civil battery doesn’t require intent to harm (it doesn’t) but that I do not know the state’s exact legal code.
Here, in case you missed it, is what I said:
I don’t happen to know this state’s specific laws on battery, though.
This case, obviously, is decided on the law of the state and not ancient common law. Perhaps you need to work on your reading skills as well as your legal skills.
Oh yes: Not that you claim to need help, but just in case…. the statutory language alone cannot tell you the law of the state. You also need the relevant SC cases interpreting that language.
Okulus
Gee, I always thought paucity was a small, compact word.
Per the esteemed firm of Mirriam and Webster:
One entry found for paucity.
Main Entry: pau·ci·ty
Pronunciation: ‘po-s&-tE
Function: noun
Etymology: Middle English paucite, from Latin paucitat-, paucitas, from paucus little — more at FEW
1 : smallness of number : FEWNESS
2 : smallness of quantity : DEARTH
I like it. It’s a keeper.
D.P.
Okulus–why are you so passionate about proving that patients give up their rights at a training hospital? If you are a doctor, I pray that I never find myself in your “care.”
Honestly, I don’t care about the legalities, but if you touch me without my consent, I’ll file a complaint with the health department at the very least. Get over yourself, and show a little respect for the patient population.
Okulus
d.p.:
Now don’t get your pants in a bunch. No one on this blog reply thread is going to make you endure any unwanted touching. Honest. (Note: this is a thread, not a hospital; this is a discussion–sort of–not a professional encounter.)
I wouldn’t call my response passionate. And I really am not interested in curtailing anyone’s autonomy.
I just don’t think this lady should be pressing for battery against a medical student. If she wants to make a case for malpractice against the person supervising that student, that is another issue.
Honestly, she seems to be about as mean-spirited a patient as I could imagine anywhere, and I hope she loses this legal fight.
lawyersux
“Okulus–why are you so passionate about proving that patients give up their rights at a training hospital? If you are a doctor, I pray that I never find myself in your “care.”
Another jackass who thinks he can judge the quality of a physican by what drivel he posts on a moronic web-site blog.
D.P.
lawyersux–I wasn’t referring to quality; I was referring to trust. If that makes me a jackass, then “hee-haw.” And make that “jackass-ette.”
Molly
At any rate, the AP got the story wrong. See this.
The “student” was from St. Francis, which does not have a medical school and therefore must have been a nursing student– that changes the whole issue because it’s outside of the scope of the duty of a nurse.
lawyersux
Could she have been training to be a nurse anesthetist?
malkah
The link below is the judgment from the Indiana Appeals Court. It states that the student was training to become an emergency medical technician, and that this was the first time she had attempted an intubation on a live person. The judgment also included in detail the contents of the informed consent forms that Mullins signed.
PDF version:
http://www.in.gov/judiciary/opinions/pdf/06300506jgb.pdf
HTML version:
http://72.14.209.104/search?q=cache:kzDldZH4XdIJ:www.in.gov/judiciary/opinions/pdf/06300506jgb.pdf+Larea+VanHoey&hl=en&gl=us&ct=clnk&cd=1
malkah
There’s more –
The link below is a webcast of the oral arguments before the Indiana Supreme Court this past week on this case:
http://www.indianacourts.org/apps/webcasts/default.aspx?search=mullins&view=table&sort=
Molly
When I was trained to be an EMT a few years ago, the rules were that you couldn’t insert an ET tube…you could do the tube that sits on top of the trachea but doesn’t go in. Those were California rules; I don’t know if it’s different in Indiana.
But– in an OR setting, the anesthesiologist, the nurse anesthetist, resident, or medical student should be inserting the tube, not an EMT, as far as I know.