Is This 'Protection' Worth the Paper It's Written on? Few if any doctors would dare perform a risky procedure without first securing a patient's informed consent. But to what extent can evidence of such consent protect physicians when something goes wrong? A recent Missouri Supreme Court ruling is the latest to suggest "not much," especially when the issue of consent isn't part of a plaintiff's claim, according to a May 31 report in Legal NewsLine.[1] The Missouri ruling stems from a case involving Josephine Wilson, who in 2004 and 2005 underwent separate balloon dilations of her esophagus in search of long-term relief of her acid reflux. The procedures mitigated her symptoms, but in 2009 an ear, nose, and throat specialist (ENT) diagnosed her with inflammation of the throat lining, which made it difficult for her to swallow. The ENT referred her to Rohtashav Dhir, a St. Joseph gastroenterologist who prescribed acid reflux medication and scheduled Wilson for an endoscopy. During the procedure, he found an inflamed stomach lining and a polyp near the top of Wilson's esophagus. He removed the polyp but also performed an esophageal dilation, despite an absence of anything in his scope that would have warranted this additional step. It was during this second procedure that Dhir's dilator kinked, causing Wilson's esophageal lining to tear. A surgeon repaired the lining, but as part of her claim, Wilson stated that she continued to experience "constant pain" in her ribs, muscles, and nerves. In his opening arguments during trial, Dhir's attorney noted that Wilson had signed a consent that, among other things, outlined the risks of endoscopy and esophageal dilation. The signed consent, the defense clearly believed, was exculpatory evidence that the jury needed to see as it began its deliberation. Wilson's attorney disagreed. He not only thought such evidence irrelevant—since his client never claimed lack of informed consent—but believed it would only serve to confuse jurors. The trial court judge disagreed, however, going so far as to allow the jurors to see a copy of the signed form. When the trial jury found in favor of Dhir and his practice group, Wilson and her attorneys appealed, ultimately landing the case before the state's high court. Following its review, the Missouri Supreme Court reversed the lower court's decision, arguing that "because informed consent was irrelevant to the case as pleaded and could only confuse the jury in its determination of the facts, the judgment is reversed and the case is remanded to the trial court." The high court also noted that, in addressing the issue of informed consent, other state courts have agreed that evidence of it is irrelevant to a claim of medical negligence. Hospital Not to Blame in Patient's Possible Drug Death Last month, a Texas jury decided that a hospital—formerly known as Hillcrest Baptist Medical Center in Waco—wasn't negligent in the death of a woman who entered the facility on October 5, 2011, complaining of severe lower back pain, as a story in the Waco Tribune-Herald reports.[2] In its claim, the family of Sarah Gann, a resident of Corsicana, roughly an hour's drive from Waco, alleged that the hospital—now known as Baylor Scott & White Hillcrest Medical Center—failed to adequately chart the patient's negative reaction to the opioid pain medication Dilaudid® when she was admitted into the emergency department (ED). Despite this poor initial reaction, the plaintiffs said, hospital staff continued giving Gann more pain medicine during the next 48 hours without properly monitoring her vital signs and respiratory rates. But the hospital's lead attorney countered that the patient, a medical assistant, was anemic upon admission and that her negative reaction in the ED was to a transfusion and not to the Dilaudid. As for the lack of monitoring, he argued that Gann was in fact monitored throughout the night, although nurses' testimony during the trial suggested otherwise. The plaintiffs also alleged that the patient had been given Narcan®, a drug used to counteract drug overdoses, an apparent indication that she had been administered a lethal cocktail of pain meds. But the attorney for the hospital said that the use of Narcan is typical in "Code Blue incidents in which a patient is found unresponsive." Jurors were sympathetic but ultimately found the plaintiffs' allegations and evidence unpersuasive. "The attorneys on both sides did a good job putting their cases out there," said the jury foreman after the trial. "But I felt ... like the defense put on a very good case. They answered the allegations and presented the evidence to support their case in a way that went above and beyond what the plaintiffs' arguments were." The defense also introduced as evidence Gann's autopsy report—which raised the possibility that medication, or the reaction to medication, was a contributing factor in her death. But the jury remained unconvinced, despite the report's vague language: "The woman's death certificate is still somewhat clouded," the foreman said. "But I never was brought to the point where I thought Hillcrest was responsible for her death." A Freak Accident During Surgery Leads a Woman to Sue An elderly patient who fell off the operating table while she was "opened up" during cardiovascular surgery at a clinic affiliated with the Duke University Health System will have her day in court, explains a story in The Herald Sun, which is published in Durham, North Carolina.[3] A lower court had initially rejected Marjorie Locklear's medical malpractice suit on the grounds that she and her attorney hadn't followed the prescribed procedure when they filed their case in 2015. In North Carolina, plaintiffs claiming medical injury must first certify that their medical record has been reviewed by an expert willing to say that the treatment provided had fallen short of the standard of care. Locklear's attorney said that he had "inadvertently" made an error and should have been permitted by the lower court judge to amend his initial complaint. In its 2-to-1 ruling, the North Carolina Court of Appeals argued in effect that the procedural error was beside the point because the claim from the first was clearly more about negligence than malpractice: Keeping a patient from falling off the operating table, explained the judge who wrote the decision, isn't something that should tax a medical professional's "clinical judgment and intellectual skill." The third judge on the panel vigorously disagreed, however, arguing that such an interpretation not only "creates a loophole" but defeats the current malpractice statute's "legislative intent." Locklear—who said that she sustained a variety of injuries as a result of the fall—will now be permitted to sue Duke University Health System and the surgeon. A parallel suit against the Duke-affiliated clinic where the surgery took place was dismissed on procedural grounds. Source
