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Archive for September, 2009

A mugger sticks a knife in you and kills you or leaves you maimed for life. A surgeon sticks a knife in you, and kills you or leaves you maimed for life. What is the difference between the two? The mugger will go to jail and the surgeon will not.

Why? Because you consented: you signed a consent form and gave the surgeon permission to stick the knife in you.

What if you did not consent? What if you were in an auto accident and unconscious, or the patient was a child who could not understand what was going on, or the doctor did something against your will? Do you have a valid complaint? It all depends on the circumstances.

Under normal circumstances, a doctor who does something to a patient without consent commits what lawyers call a Battery, which is when someone actually touches you without your consent and does you some harm. It is different from an Assault, which means putting you in fear of imminent injury. Angry words do not constitute an assault, unless you have good reason to fear that violence is about to follow. It is important to remember the difference when you are thinking about whether you have a valid complaint for lack of consent.

A Maryland ENT specialist obtained a consent form to operate on a patient’s right ear. By mistake, he operated on the left ear. He claimed there was no harm, since he had done a good operation on the left ear, which was also diseased and would eventually have required surgery. But, the court held that no matter how skillfully he had operated, he had committed a battery, because he did not have permission to operate on the left ear. He was guilty of medical malpractice, because he negligently failed to check and make sure he was operating on the correct ear.

A Missouri plastic surgeon, who was confronted by an angry and dissatisfied patient, pulled out a can of mace and sprayed the patient in the face. Spraying mace in the patient’s face was a battery. It got into the patient’s eyes, nose, and mouth and did a lot of harm. If the doctor had just threatened him with the can, so he was afraid he would be injured but had not actually sprayed him, that would have been an assault. Actually, it was both assault and battery, because the outraged patient was put in fear as soon as he saw the can of mace coming at him, as well as being injured. The doctor’s action was worse than medical malpractice. It was a crime, and the doctor lost his license to practice medicine.

That case was unusual. Many medical malpractice cases involve battery, but it is what lawyers call Inadvertent Battery; the result of carelessness or an honest mistake. The doctor operates on the wrong eye, or a nurse gives an injection to the wrong patient. They do not mean harm, but it is medical malpractice all the same. The doctor who operated on the wrong ear certainly did not intend to harm his patient. In fact, he did a first-class operation, but he made a careless mistake.

The courts treat inadvertent battery as plain malpractice or even a slip of the wrist accident. They are not willing to penalize a doctor for a mistake that could happen to anyone and may dismiss such a complaint or give a small award. However, if a doctor deliberately does anything to harm his patient’s physical or emotional well-being, without the patient’s consent, that is what is known as a Battery with Malicious Intent.

A Long Island dentist was found guilty of having had sex with his patients while they were asleep under anesthetic. That was battery with malicious intent. A psychiatrist in a VA hospital gave a patient a potent, mind-altering drug used only on animals as an experiment and without his knowledge or consent. The patient went crazy and committed suicide. The jury found the doctor guilty of battery with malicious intent and assessed heavy damages that he had to pay out of his own pocket.

The Rule Is:
If you have been the victim of battery with malicious intent, it means the doctor is under tremendous pressure to settle.

Multiple Defendants

You were treated by many doctors over a period of time and cannot be sure which one was responsible or whether they all were. This is the most difficult type of malpractice case to win for the following reason


1. Medical malpractice lawsuits against multiple defendants require an enormous amount of paperwork and added expense.

2. Juries might believe that one or two doctors committed malpractice but are reluctant to believe that all the doctors and two or three hospitals were all negligent.

3. Jurors are turned off by what they see as harassment suits against innocent people.

4. The most important reason is that the lawyer for each defendant will make a summation speech to the jury at the end of the case, which means that the jurors will hear multiple arguments against you and only one argument – your lawyer’s – in your favor. That loads the odds heavily against you, and such cases are usually lost.

An airline attendant sued a California dentist for dental malpractice that resulted in her losing most of her teeth. However, in the course of her work, she had been treated by four other dentists in different cities, during and after the poor work done by the California dentist. Her lawyer had an impossible job of trying to sort out who was responsible for what, and he could not drop any of the defendants, because their work was overlapping. She finally dropped her case.

The Rule Is:
As your attorney makes discovery and finds out what really happened and who was responsible, you drop your complaint against everybody who was not responsible and try to end up with not more than 1 or 2 opponents in court.

The Doctor Made a “Slip of the Wrist.”

Be careful of the mishap which can be defended as a “slip of the wrist” or unforeseeable accident. We all make honest mistakes, and medicine and surgery are arts and not exact sciences. If the statistical chances of a bad result from the operation you had are 2%, and your doctor testifies that he has done over 200 and yours is the first one he ever had to go wrong, the jury will probably go along with him. No one is perfect, and doctors are only expected to adhere to good and accepted medical practice.

Unless the doctor has persuaded you to go ahead with surgery or treatment on the basis of a promise of specific, good results, such as in Cosmetic Plastic Surgery, the law says that he only undertakes to treat you and does not guarantee any results. However, if there was a Pattern of Negligent Behavior – he was negligent on more than one occasion while treating you – it blocks the simple mishap defense, and your case is much stronger.

The Local, Small Town Doctor

The physician who looks and acts the part of the sincere, dedicated, well-qualified doctor, and who is well thought of in the community, can be a tough opponent, no matter what he did. The jury is going to believe his version of what happened, because the jurors like and trust him.

In a case in upstate New York, a neurosurgeon had a patient who died. The doctor was in his 80’s – too old to open somebody’s head – and made terrible errors, which caused the patient’s death. No doubt about it. Technically, it was an open-and-shut case. The widow sued and brought in well-qualified professors in Neurological Surgery and Pathology as her medical expert witnesses. The doctor’s medical expert was a pathologist with dubious credentials, who showed microscopic slides that he said were from the patient but were proven to be from another person and exposed as fraudulent. No matter! The doctor was a beloved old, local character who knew practically everybody in town. The jury was not about to find him guilty of malpractice – and it didn’t.

The Rule Is: Eminent doctors and famous hospitals can usually brush off weak or dubious lawsuits. Juries are reluctant to believe that they would do anything wrong. They are tough opponents and you must have a strong case if you hope to win. One way your lawyer can neutralize local popularity or prestige of a formidable opponent is by a legal maneuver called Change of Venue.

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