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The Respectable Minority Rule

You are sitting outside the treatment room of a hospital when you hear one nurse say to another, “Dr. Jones is butchering that poor patient!” The patient is your mother. Or, you have a broken leg se

t by one doctor and go to another doctor to have the cast removed. He says something like, “Who did this? I certainly would not have done it this way!” Your leg still hurts, and you do not like the look of it. Or, your friend tells you that you could have been treated painlessly with an inexpensive medicine, after you have had expensive and painful surgery.

Right away you think the doctor committed medical malpractice and maybe he did. A lot of malpractice only comes to light by listening to unguarded comments and hospital gossip. But, do not be too quick. Maybe the nurse does not know what she is talking about when she criticizes the doctor’s treatment of your relative. Maybe the technique for setting the broken leg is highly regarded by 30% of doctors. Maybe the surgery saved your life, and medicine would have killed you. The practice of medicine is not a popularity contest. The U.S. Supreme Court once ruled that if 51% of the doctors in the U.S. do one type of treatment, it does not mean that the other 49% are guilty of malpractice. If the doctor can show that his ideas are those of a respectable minority, he is okay.

What is a respectable minority? It can be a certain percentage of doctors or members of the same specialty, such as 30% of all family practitioners, or 30% of neurosurgeons treating a rare disease, or it can be a few eminent doctors.

Do not go off half-cocked, because a doctor or a nurse does not agree with what your doctor did. Almost 40% of medical malpractice lawsuits and dental malpractice lawsuits are set off by a nurse or a doctor bad-mouthing another doctor. The criticism may be an honest difference of opinion or just envy. Before you spend time and money on a lawsuit, be sure there really was malpractice.

Before you decide whether you have a legitimate complaint for lack of informed consent, let us look at some of the ways you can consent to a doctor’s treatment and some of the ways a doctor can treat a patient without that person’s formal consent.

Implied Consent

This is consent implied by your actions. The very act of walking into a doctor’s office, or a hospital ER, or voluntarily submitting to treatment is a valid consent. If you go into a doctor’s office with a boil on your neck and do not object when he lances it, you have consented. A Mississippi mother sued her local school board, because her child developed a severe reaction to an inoculation that was given to the child at the school clinic. She complained the shot had been given without her consent. The court held that she had given her implied consent by allowing the child to be sent to the clinic.

Verbal Consent

Any time you solicit a doctor’s opinion, advice, or treatment you have consented. It does not matter whether it is in his office, or a hospital, or on a street corner. This applies to simple everyday treatments and office visits, which are easily understood by the average person. It does not cover more complicated procedures, especially surgery.

A South Carolina woman requested a dermatologist to remove a blemish from her face by freezing it with carbon dioxide. The doctor warned her that it might leave a permanent depigmentation (white spot) and even with that knowledge, she agreed. It did and she sued the doctor for medical malpractice, because she had not signed a consent. The court held that her verbal consent was binding, because it was a simple procedure which anyone could understand.

Written Consent

Most medical malpractice lawsuits for lack of informed consent involve written consents. Theoretically, a doctor can do the most complicated and dangerous treatment with only your verbal consent. However, no doctor in his right mind would do such a thing. If the treatment is complicated, dangerous, or involves anesthesia and surgery, a prudent doctor or hospital will obtain a written consent from the patient. This type of consent is valid and binding on the patient, provided it is Fully Informed, meaning that you understood what you are agreeing to.

Consent by Proxy

This is when someone else consents to your treatment on your behalf. The obvious case is a parent consenting to surgery on a child. What if your father is unconscious from a fractured skull and needs immediate brain surgery? Can you give a legally-binding consent? No. In that situation, the doctors have to make the decision and do what they assume the patient would have consented to, if able. Only a spouse, legal guardian, or healthcare power of attorney of a patient can give a proxy consent for someone else.

That does two things. First, it means the doctors cannot pass the buck to you. They are the experts. They are responsible for the technical decisions and must do what they know is best. Second, they cannot do anything to an unconscious patient they know the patient would not have agreed to. For example, they cannot give a blood transfusion to a Jehovah’s Witness or do a hysterectomy on a young, unmarried female.

A teenage girl, who was visiting her aunt in Boston, decided to go to a doctor and have warts removed from her face. Both she and her aunt signed the consent for treatment, which scarred the girl’s face. She sued the doctor for medical malpractice and won. The court held that she could not consent, because she was underage; the aunt was not her legal guardian, and there was no emergency. Therefore, the consent was not legally binding on the girl or her parents.

However, this type of complaint may be difficult to win. It is based on the traditional legal theory that a minor cannot enter into a contract. In recent years, that rule has been seriously undermined by laws permitting teenagers to undergo abortions without their parents knowledge or consent. While the law still requires minors to obtain parental consent for other forms of treatment, the courts are more reluctant to enforce the rule. It does not make sense to permit a doctor to do an operation like an abortion, with only the teenager’s consent, but penalize him for doing trivial procedures, like removing a wart, with the same consent.

The child of two Jehovah’s Witnesses was admitted to a hospital in Maine following an auto accident. A blood transfusion was urgently required to save the child’s life, but the parents refused to consent on religious grounds. No one else could do it. So, the hospital administrator went to a local judge, who appointed the administrator and the doctor in charge of the case as temporary legal guardians. That gave them legal authority to order the transfusions, and the child’s life was saved. When he was out of danger, the judge returned the child to the custody of its parents. How did the parents feel when it was all over? They were happy and grateful their child’s life had been saved without having to violate their religious beliefs.

The Rule Is: There are a number of ways you can consent to treatment for yourself or a member of your family. However, the important points to remember are:

1. A consent only covers your specific illness and the immediate treatment agreed upon between you and the doctor. It does not cover any other disease condition the doctor may find, unless it says so in the consent form.

2. It is not transferable. It only applies to the doctor and the patient named in the consent. If you consent to surgery by one doctor, they cannot switch doctors. That is abandonment. If you consent to have one child’s tonsils out, they cannot do the other child. That is a battery.

3. Consent cannot be given by a family member, even if the patient is unconscious, unless the family member is a spouse, the legal guardian, or has healthcare power of attorney. If the patient cannot consent for some reason, the doctors will obtain a consent from the closest relative available. But, it is not legally binding on the patient. In that situation, the doctors must make the decisions themselves.

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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