As medical malpractice attorneys in St Clair County, Illinois, we are always interested in legal cases involving people hurt by doctors.
A New Jersey case recently came into the public discussion involving a woman who had gone to her doctor to have a fibroid cyst removed in what would in most cases have been the least invasive manner available; laparoscopically rather than via traditional surgery.
There were advantages to laparoscopic medical treatment for her condition that her health care provider explained to her. Shorter healing time and less pain were several of the advantages that her doctor explained to her would result from this “less-invasive” hysterectomy.
The patient’s doctor, in his notes, recorded that he had mentioned the risks of this particular approach to her medical care in the somewhat low odds that the tissues being removed were malignant. The very tool that would be used to cut up the tissue internally, so that it could be removed through a small incision could, in cases of malignancy, inadvertently spread the cancer through the patient’s body.
The patient later signed a consent form in which she agreed to the laparoscopic surgery. The form, it was later discovered, did not explicitly mention the doctor’s warning about the possible dangers of this type of surgery.
The surgery was performed and upon analysis of the tissue from the hysterectomy, it was discovered that the cysts were in fact malignant. The patient in this story dies less than a year later.
Further complicating this case are the facts that six months prior to the patient’s surgery the FDA (Food and Drug Administration) issued a communication to hospitals discouraging use of the device that cut up the tissue prior to laparoscopic removal, warning of the possible negative effects. The hospital, in turn, communicated this risk to the doctor, who noted that he verbally conveyed this risk to the patient.
One month after the patient’s surgery the FDA updated their communication, this time explicitly warning against the use of the medical device in question. The hospital discontinued use of the device in response. But it was too late for the patient.
The crux of this case, it seems, involves the importance of fully informing the patient of the risks and then obtaining informed consent from a patient. It also stresses the importances of the accuracy of the written document read, signed and agreed to by the patient. In this particular case even though the written document did not contain the warning of this particular risk, it was judged, upon examination of the doctor’s notes, that the patient was making a fully informed decision and that there should be no award of punitive damages which are a tool for punishing the defendant.
A Requirement for Punitive Damages
In Illinois (this particular case took place in New Jersey and State laws vary), to recover punitive damages, a plaintiff must show by clear and convincing evidence that the defendant’s conduct was with evil motive or with a reckless and outrageous indifference to a highly unreasonable risk of harm and with a conscious indifference to the rights and safety of others.
“Clear and convincing evidence” means that measure or degree of proof that will produce in the mind of the trier of fact a high degree of certainty as to the truth of the allegations sought to be established. This evidence requires a greater degree of persuasion than is necessary to meet the preponderance of the evidence standard.
A Definition of Informed Consent
According to the AMA, the process of informed consent occurs when communication between a patient and physician results in the patient’s authorization or agreement to undergo a specific medical intervention.
Further, the physician must: Assess the patient’s ability to understand relevant medical information and the implications of treatment alternatives and to make an independent, voluntary decision.
The physician must also present relevant information accurately and sensitively, in keeping with the patient’s preferences for receiving medical information.
Finally, the physician must document the informed consent conversation and the patient’s (or surrogate’s) decision in the medical record in some manner. When the patient/surrogate has provided specific written consent, the consent form should be included in the record.
A Definition of Malicious Intent
Malicious Intent describes a situation in which the subject acted willfully or intentionally to cause harm without legal justification.
In this particular case described above, the physician and hospital were not shown to have had malicious intent that would have opened the door for the family of the patient to receive punitive damages.
In this particular case the hospital’s and the physician’s thorough documentation of advising the patient of the risks involved in the surgery seemed to prove essential in the finding that their intent was not malicious. And, this underscores the importance of thorough documentation by everyone involved in a case.
We Get You The Putative Awards You’re Entitled To
As a part of our duty to you as your legal counsel, Keefe, Keefe & Unsell, PC, will thoroughly test the evidence in your malpractice case to determine if your doctor truly gave you the opportunity to understand the information regarding your medical procedure before they obtained consent from you.
If there is any question as to whether you as a patient were truly educated about the risks and benefits of the procedure performed on you we can call into question the informed consent process that you were a part of.
It’s important, when you are consulting with your doctor that you listen carefully to all of the possible risks associated with your treatment. It’s important that you read consent documents carefully and that you insist that the risks be addressed to your satisfaction before you allow a doctor to proceed. If your doctor does not answer your questions in a manner that makes you comfortable it’s your right to follow your gut and even refuse treatment until your questions are answered in a satisfactory manner.
Hire An Attorney Who Thinks Like a Doctor
The law firm of Keefe, Keefe & Unsell, P.C., win cases because of careful case evaluation and litigation. Our firm has years of experience in engaging in thorough, careful pre-screening and pursuing cases judged meritorious by a network of qualified physicians and other experts.
Keefe, Keefe & Unsell, P.C. will evaluate your case, looking hard at the type of negligence involved and the magnitude of adverse consequences. We recognize that injury victims need sound legal guidance and not false hope. Our firm is comprised of some of the most successful medical malpractice lawyers in Belleville IL.
Keefe, Keefe & Unsell, P.C. are highly-trained personal injury lawyers who have a track record of winning a wide range of high-stakes medical malpractice claims, obtaining numerous sizable verdicts and settlements agains doctors, hospitals and their insurance companies.
If you’re living in the Belleville, Illinois area and are searching for an injury attorney near me, you’ve probably found Keefe, Keefe & Unsell at the top of your search query. That’s because injured people in St Clair County, IL again and again recommend us as the best injury lawyers near me.
Please contact us at (618) 236-2221 for a free consultation and thorough, informed evaluation of your potential legal case.