January 9, 2008

I’m getting sued for WHAT?

Written By

Tricia Freije
Member, Stoll Keenon Ogden PLLC

AAOSNow, a publication of the AmericanAcademy of Orthopaedic Surgeons

My client’s eyes were wide with disbelief. Although the judge had dismissed the plaintiff’s medical liability claims, the patient was allowed to recast and proceed with a different allegation—medical battery.

“Battery? Can’t you go to jail for that?” he exclaimed. I quickly explained that the case would be heard in civil court; jail time is a punishment reserved for criminal courts of law. This calmed him some­what, but he was still having a hard time comprehending the insidious-sounding allegation. “How am I getting sued for battery?” The truth is, more and more physi­cians—surgeons in particular—are at increasing risk of being sued for medical battery, because this allega­tion seems to be an emerging trend among plaintiffs and their enter­prising attorneys. This article provides a cursory overview of medical battery and suggests ways to reduce the likelihood of such lawsuits.

Talk may be cheap, but litigation isn’t!

Most first-year law students learn some variation of the basic definition of battery as “touching without consent.” In medicine, a surgeon commits battery when he or she operates on a patient without consent. Given these litigious times, surgeons would be wise to think written consent, practicing under the auspices of the patient’s verbal consent is risky.

For example, I once represented a physician whose patient needed a minimally invasive procedure, but was reluctant to give consent because one of the known risks was inconti­nence. She was scheduled for a different outpatient procedure and, on the day of surgery, decided to have the minimally invasive proce­dure. Based on her request and verbal consent, the surgeon performed both procedures, extending the total surgical time by less than two minutes. There were no complica­tions or lingering adverse effects.

Unfortunately, however, the surgeon failed to require that the patient provide assent to the proce­dure in writing. As it was a very minor “add-on” to an already planned operation and he had a harmonious doctor-patient relation­ship, he probably didn’t think a written consent was necessary. But after short-term incontinence allegedly developed, a contentious, “he-said, she-said” lawsuit ensued.

Courts in many states have found that the presence of a signed consent form establishes a “presumption of consent” on the part of the patient. This requires the patient to prove that some kind of extenuating circumstance, such as fraud by the physician, voided the otherwise valid consent. If my client had simply obtained the patient’s written consent for this particular procedure, rather than relying exclusively on a verbal authorization, he would have likely been spared the headache and expense of litigation.

For example, in the first case discussed in this article, the patient alleged that her permission did not encompass some of the additional procedures performed. But according to the physician, “this was one sick patient. We had no idea what we’d find when we got in there. I had to do what I did…it would have been malpractice to do otherwise!”

Ironically, the patient’s health improved remarkably after the surgery. There were no complications. Yet the patient sued for the perform­ance of procedures that, in all reality, ultimately cured her. Because she sued for battery rather than the more traditional claim of “professional negligence,” the patient did not have to prove that she was harmed by the procedures in question, only that they took place without her permission. What ultimately vindicated this physician, however, was the broad, catch-all language on the patient’s signed consent form. In part, it read: “I understand that during the course of the procedure described above it may be necessary or appropriate to perform additional procedures which are unforeseen or not known to be needed at the time consent is given. I consent to and authorize the persons described herein to make the deci­sions concerning such procedures as they deem necessary or appro­priate.”

The court found that, in addition to the procedures specifically listed, there was a presumption of consent to those that were “necessary or appropriate” and either “unforeseen” or “not known to be needed.” Accordingly, the judge ruled in favor of the physician and dismissed the case, as the plaintiff failed to produce expert medical testimony to contra­dict the position that the additional procedures were indeed within the scope of this consent.

Note, however, that the language comprising this broad and general category of consent is subject to judi­cial scrutiny, and there is a tendency by the courts to interpret any perceived ambiguity or confusion to the benefit of the patient. For instance, changing the words “unforeseen or not known to be needed” to “unforeseen and not known to be needed” could have significant implications. Courts have considered similar language before, resulting in adverse rulings against the practitioner.

Many procedures could be deemed “foreseeable” when taking a patient’s clinical presentation into considera­tion, but the surgeon may not know if any of these procedures will be necessary until the surgery begins. Using the word “and,” as opposed to “or,” enables the phrase to be read as the patient renders consent only for additional procedures that are both “unforeseen and not known to be needed.” Under this interpretation, the physician would be precluded from performing any reasonably “foreseeable” procedure not specifi­cally listed on the consent form.

An ounce of prevention is better than a pound of cure!

Although the number of cases alleging battery against healthcare providers appears to be on the rise, many of these claims can be preemp­tively thwarted by the careful procurement of written consent.

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