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  • Informed Consent and Medical Malpractice Cases #2
    April 01 2015

    For several weeks during August 2009, my good friend Larry Baron and I tried a medical negligence case in Jackson County, Oregon.  Our client, Mrs. Warren, had gone in for an elective eye surgery; our claim was the doctor was negligent because she was never a candidate for the surgery.  The doctor never should have operated on our client.

    At trial, the doctor wanted to tell the jury that our client had signed consent forms and, therefore, she accepted the risk of a bad outcome.  The trial judge said such evidence was improper.  In reality, defendants always say this, mostly to confuse the jury into thinking that patients accept certain “risks” when they have surgery.  What they want is a free pass even if the bad outcome is caused by the doctor’s own negligence.

    It seems that in every medical negligence case the doctor and the lawyer try to confuse the jury by bringing in the consent forms.  Such forms are irrelevant in a medical negligence case.  The patient never consents to the risk of negligently performed treatment.  Rather, the patient merely consents to the risks of a properly performed procedure. 

    The jury agreed with us and awarded our client damages.  The doctor appealed.  In 2012, the Oregon Court of Appeals agreed with us and the jury verdict was upheld.  Mrs. Warren eventually obtained justice from her case. 

    You might ask, isn’t this “old” news?  Yes and no. I did blog on this particular case back on March 10th.  However, on March 25, 2015 the Pennsylvania Supreme Court relied upon our Warren case in the case of Brady v. Urbas.  In that case, the Pennsylvania Court said:

    The fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent in either considering the patient an appropriate candidate for the operation or in performing it in the post-consent timeframe. Put differently, there is no assumption-of-the-risk defense available to a defendant physician which would vitiate his duty to provide treatment according to the ordinary standard of care. The patient’s actual, affirmative consent, therefore, is irrelevant to the question of negligence.

    And in reality this simply makes sense.  If you are negligent, you cannot avoid responsibility for the harms you cause by claiming the victim knew there were risks.  To do so would be similar to allowing a driver who runs a red light avoiding responsibility for injury by claiming the person he broadsided should have “assumed the risk” that someone else would break the law.  Simply put, the law does not operate that way.

    By signing an informed consent form, you have not given up your rights if you are harmed by negligent conduct.

  • Informed Consent and Medical Negligence Cases
    March 10 2015

    I read with interest Steve Duin’s column in OregonLive.com this morning.  Mr. Duin describes a horrifying case in which a dentist at OHSU, who was in practice for only eight months, severely injured a young woman while performing a complex dental surgery.  It turns out this first year dental resident had never performed this particular type of surgery.  The Chairman of the Department of Oral and Maxillofacial Surgery—the person who was overseeing this resident—was not in the operating room when the surgery was performed. 

    According to the patient’s legal papers, she was asked to sign an informed-consent document that, according to Mr. Duin, stated “Physicians other than the operating practitioner, including but not limited to residents, will be performing important tasks related to the surgery.”

    Many people believe – erroneously – that once they sign an informed-consent document they can never sue their doctor for compensation when mistakes are made.  Undeniably, in Oregon as with many jurisdictions, there is a distinction between medical negligence and the informed-consent laws.  When the patient signed an informed consent document, the patient is not authorizing the doctor to commit a malpractice or perform the surgery negligently.  Putting it in a different way, the doctor does not get a “pass” simply because the doctor warned the patient of all potential adverse outcomes.

    Several years ago, my colleague Larry Baron and I tried a case in southern Oregon.  We were able to prove the surgeon should never have performed the surgery on our client.  The doctor and his lawyer wanted the jury to see the informed consent document our client signed.  We objected.  We argued that whether our client consented to the surgery was not the issue.  The issue was whether the surgery should been done in the first place.  The trial court agreed with us.  After we obtained a verdict for our client, the doctor appealed the jury verdict the Oregon Court of Appeals agreed with us and upheld the jury’s verdict.  You can read about the decision here.

    If you have a question about an adverse outcome in a medical negligence situation, feel free to give me a call.


  • FDA Considers Expanding Definition of Nonprescription Drugs
    March 23 2012

    The Food and Drug Administration (FDA) is considering expanding the definition of nonprescription drugs to make them more available to consumers.  It is attempting to make drugs for common conditions available as over the counter (OTC) products as research has shown that as many as 20 percent of patients with prescriptions do not get them filled.

    “OTC drugs have had great success in providing consumers with excellent self-care options. But our concept of self-care is limited to conditions that can be self-diagnosed and self-treated based on the information in the drug facts box, combined with common knowledge,” said Janet Woodcock, M.D., director, Center for Drug Evaluation and Research. 

    “What we are asking is, should there be more flexibility in the concept of nonprescription drugs? Can we broaden the assistance a consumers gets and increase the types of medicines that might be available over-the-counter,” she added.

    In order to obtain the OTC drug, a patient would no longer need to see a physician to obtain a prescription but might need to meet with a pharmacist or obtain a diagnostic test.  Potentially, for some drugs the patient might need to see a physician for the original prescription but obtain re-fills without further consultations.

    The FDA is requesting input from consumers, pharmacists and members of the health care community.

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