Doctors hold a very trusted position in society. In part, this is because they have tremendous power to cure diseases and ailments through a variety of means, one of which is surgery. However, surgery also presents a significant amount of risk in many situations. And before a doctor can perform any kind of surgery, operation, or procedure on a patient, that doctor needs to obtain informed consent from the patient after explaining to the patient all the risks involved with having the procedure done. If informed consent is not obtained by a doctor, and a procedure does not cure the patient’s condition or makes it worse, the doctor may be liable under a theory of medical malpractice, specifically medical battery.
Earlier this month, a Hawaii appellate court issued an opinion allowing a plaintiff’s medical battery case to proceed against a defendant surgeon on the basis of the surgeon’s failure to obtain informed consent to perform the surgery. In the case, Garcia v. Robinson, the plaintiff underwent a back surgery at the advice of the defendant surgeon. However, the surgery did not go as planned.
According to the court’s written opinion, the plaintiff had suffered a back injury at work and was seeking treatment. He consulted with the defendant doctor, who, according to the plaintiff, told him that if he elected to have a specific surgery he would no longer experience pain in his back and would be “up and dancing” within three days. The doctor denied telling the plaintiff that he would be pain-free after the surgery, explaining that such an assessment would be preposterous, since back surgery is some of the most painful surgery to undergo. The surgeon also presented the court with a form he claimed to have provided to the plaintiff, explaining that the surgery may not be successful and that it could actually worsen his condition.
Based on the doctor’s representations, the plaintiff elected to have the surgery. However, it failed to help with any of his pain or symptoms. In fact, the plaintiff was required to walk with a cane after the surgery. Moreover, another medical expert testified that the surgery was actually performed on the wrong section of the spine, and performing the surgery where the surgeon had performed it worsened the plaintiff’s condition.
The court hearing the case determined that the plaintiff’s case should survive the defendant’s pre-trial challenge. The court looked to the fact that the defendant never produced a signed copy of the form he claimed to provide to the plaintiff. Thus, there was sufficient evidence to proceed to trial on the plaintiff’s informed consent claim.
Have You Been Injured after a Medical Procedure?
If you or a loved one has recently been injured or had a pre-existing condition made worse after undergoing any kind of procedure or surgery, you may be entitled to monetary compensation under one of several available medical malpractice theories. Call 410-654-3600 to set up a free consultation with a skilled and knowledgeable medical malpractice attorney at the Maryland and Washington, D.C. personal injury law firm of Lebowitz & Mzhen Personal Injury Lawyers. With decades of experience handling medical malpractice claims of all types, the attorneys at Lebowitz & Mzhen know what it takes to be successful for their clients.
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