A medical malpractice case can be based on the failure of the healthcare worker to warn a patient of known risks of a procedure or a course of treatment. The law imposes upon physicians and other healthcare workers a duty to secure informed consent from a patient before going forward with a procedure or course of treatment. An Indiana medical malpractice attorney explains that if after being informed of the risks the patient would not have chosen to have the treatment or procedure, then the doctor would have committed medical malpractice if the patient is injured by the procedure in the manner that the doctor should have warned could happen. However, if the patient consents to the treatment or procedure after being warned of the risks, the doctor still may be liable for medical malpractice should the patient suffer injury during the treatment or procedure. A recent medical malpractice case demonstrates that a doctor cannot hide behind informed consent if he was negligent.
Because most medical procedures and treatments involve some risk a doctor or other healthcare worker has a responsibility to let the patient know about such risk. This allows the patient to make a decision as to whether or not to undergo that procedure or course of treatment. Such consent it typically given by the patient in writing. However, in emergent cases where physicians must act immediately to save the patient’s life, the law allows them to do so without first obtaining informed consent.
The Case of Vickie Tatlock
In 2004 Vickie Tatlock was admitted to Bloomington Hospital with a serious heart condition. Tatlock’s condition required a procedure called an angioplasty. There was no issue concerning informed consent, and Dr. James Faris performed the procedure. A known risk of angioplasty is that a coronary artery may be perforated. That is what happened to Tatlock. A perforation of a coronary artery increases the risk for cardiac tamponade, which is a dangerous condition that develops when too much fluid builds up in the sac in which the heart is enclosed, causing pressure on the heart. Thus, when an artery is perforated, the patient must be watched closely.
Negligence Despite Informed Consent
Dr. Faris failed to watch Tatlock closely and instead tended to another patient. Furthermore, Dr. Faris did not request that another physician check in on Tatlock. Tatlock did suffer a cardiac tamponade, her condition steadily deteriorated, and she eventually died. Tatlock was just 49 years old. Tatlock’s husband and son sued Dr. Faris. The case finally came to verdict in October 2013 with the jury awarding the plaintiffs over $5 million in damages. In this case Tatlock consented to the angioplasty knowing that a perforated artery was a risk. However, when Tatlock did suffer the perforated artery, Dr. Faris and the hospital staff had a duty to follow accepted medical practice to treat the condition. Since Dr. Faris failed to do so he was liable for medical malpractice. The type of malpractice that Faris committed was not that he failed to warn Tatlock, but that in treating Tatlock Faris failed to meet the appropriate standard of care.
While informed consent is indeed necessary to ensure that the patient understands the risks associated with a treatment or procedure and to protect the physician from legal liability, in reality is such consent given freely in cases where the alternative is the worsening of a condition or even death?
Ellen was on an annual weekend getaway, downhill skiing with friends, when she tore her ACL. She heard a loud “pop” and knew immediately what had happened. Her husband rushed her home, 2 hours away, and took her to the emergency room. Although her injury was severe, she was sent home with pain pills and was told to stay off of her feet. Ellen met with her doctor later in the week and they agreed that undergoing surgery would be the best option for the condition of her injury and her desire to become active again. Ellen expressed her concern about going under general anesthesia and any anesthesia errors that might occur during the surgery. Her doctor assured her that such errors are rare and she would feel better once her surgery was over. During her surgery, Ellen suffered a small heart attack that added time to her recovery and hospital stay. Ellen and her husband were baffled that she had a heart attack while under anesthesia. She was healthy and had no pre-existing health conditions or history of heart problems. Her doctor explained that the heart attack most likely occurred when Ellen’s oxygenation became dangerously low and the acting anesthesiologist failed to work quickly enough to fix the problem before it occurred. After Ellen is released from the hospital, she and her husband are meeting with a friend, who practices law, to see if they are able to file a medical malpractice claim and receive compensation for her physical, mental, and emotional pain.
Anesthesia Errors: Know Your Risk
When many patients meet with their doctor or anesthesiologist to discuss their concerns about an upcoming surgery, anesthesia awareness might be a big topic of conversation. Anesthesia awareness occurs when the patient regains wakes up briefly (or in some cases for a longer period of time) and sees, feels, or hears parts of the surgery. In extreme cases, some patients are wide awake during the whole length of the surgery and can feel the procedure, but due to the paralyzing effects of the anesthesia, they are unable to move or communicate to the medical staff that they are awake. Fortunately, anesthesia awareness is rare, but there are other complications related to anesthesia that are more likely to occur during a surgery. Before your surgery, it’s vital to discuss your medical history and any pre-existing conditions that may put you at greater risk for an anesthesia error. While it’s a surgeon and anesthesiologist’s responsibility to keep you safe and alive during surgery, you are responsible for sharing any known health conditions or history before your surgery. Serious anesthesia complications include:
– Mental confusion and memory issues
– Lung Infections
– Heart Attack
You are more likely to have such complications if you are overweight, have a history of alcohol or drug use, are diabetic, have high blood pressure, or have other serious or pre-existing health conditions. Additionally, it is important to pay attention to your health during your recovery because in some post-op cases, patients have been known to react to a general anesthesia days or weeks after the surgery.
In Their Hands, We Trust
Going under the knife can be scary and it’s often difficult to put control into other people’s hands. Before you finalize a decision to have a surgical procedure, you have the right to ask for a second opinion. You also have the right to find a surgeon whom you trust and while it may be difficult, you should be able to do some research on their background (i.e. medical malpractice). Surgery is meant to improve the quality of your life. Would you rather go under the knife, internalizing all of the “what if’s” or would you rather have a frank and informative discussion with your doctor about any errors that may occur?
The last time you got behind the wheel of your car, were you guilty of talking on the cellphone, reading a text or even sending a text? How important was the last text you were eager to read or respond to? Most likely, it wasn’t important nor was it worth the risk of taking your eyes off the road for even a couple of seconds. Even though most drivers know the dangers behind texting and driving, many drivers have the “tragedy can’t happen to me” attitude. Drivers feel like they have become accustomed to driving with numerous distractions, such as music, calming fussy children, answering work related phone calls, and eating breakfast during morning rush hour. “Multi-tasking” drivers are less likely to abandon the distractions, especially if they have had an incident-free record. Even a “close call” is not enough to scare and stop a driver from eliminating distractions. So, how can you convince your son or daughter, spouse, and even yourself to put down the phone and focus on your driving?