A common defense in medical malpractice cases is the “known and accepted complication” defense.  In essence, the defense argues that a particular complication arises in a set percentage of cases even when the procedure is performed correctly.  The defense is commonly applied when a patient is injured by a postoperative infection or by damage to organs, blood vessels or nerves in the operative field.  Typically, the defense is applied when it is impossible to verify that the surgeon’s contention that the procedure was performed correctly.  For instance, we cannot verify if the physician scrubbed in or complied with other accepted infection control measures.  Therefore, the defense turns the patient’s postop infection into an accepted risk of the procedure.  On the other hand, medical studies show us that hospital personnel are notoriously bad at maintaining proper infection control measures, and that many infections are strictly hospital-borne.  So, frequently, this complication is not an inherent risk of the procedure nor should it be accepted.

One approach to this defense is to bring an informed consent claim if the doctor failed to disclose a complication.  I wrote extensively about handling informed consent cases in 2000 in my article entitled “Informed Consent – An Underutilized Cause of Action,” 11 Ohio Trial 33.  As you can tell from the title, back then, I thought informed consent was a viable cause of action.  Since then, however, pursuing an informed consent case has become impossible since every hospital now requires that patients sign a global consent form in which the patient acknowledges in blanket fashion that he/she was informed of all aspects of the procedure.  Even worse, informed consent claims play into jurors’ innate defense attribution bias.  As a medical malpractice lawyer who has tried a number of informed consent cases and tested the issue with a variety of focus groups, I have concluded that traditional informed consent claims are dead.  So what to do when a client is injured by a complication that is a known risk of the procedure?

While traditional informed consent claims have been destroyed by cleverly crafted consent forms, related claims for medical battery and fraud are alive and well.  My law partner, Howard Mishkind, recently successfully tried a medical battery case.  That case arose when a surgeon decided to perform an additional procedure after the original operation was underway, and the unauthorized procedure resulted in a serious complication.  Medical battery arises either because no consent was given, or because the procedures performed went beyond the boundaries of the consent that was given.  Stokes v. Strong (1999), Lucas Cty Ct App Case No. L-80-138, 1981 WL 5472.  Not only did the trial result in a favorable verdict, but the jury also awarded punitive damages.

In pursuing medical battery claims, it is important to establish that the unauthorized procedure was not done due to a legitimate emergency.  Medical treatment is lawful absent an express consent under the doctrine of implied consent when a “medical emergency requires immediate action to preserve health or life of the patient.”  Anderson v. St. Francis-St. George Hospital (1992), 83 Ohio App.3d 221.  However, a surgeon’s mere good intention is not enough to defeat a battery claim.   Battery occurs with nonconsensual contact, even if the contact is meant to assist the patient.  Perkins v. Lavin (1994), 98 Ohio St.3d 378.

Medical fraud claims arise when a facility or physician misrepresents the benefits of a procedure or some other aspect of the procedure.   For instance, in Watkins v. Cleveland Clinic (1998), 130 Ohio App.3d 262, the court held that when a resident performs surgery rather than the patient’s attending physician, without specific permission to do so, that is actionable.  I recently settled a fraud claim arising out of a hospital’s misrepresentation about the success rate of a particular procedure.  I also resolved a case where an Alzheimer’s patient was abused in a nursing home setting.  The favorable settlement in that case was driven by the fact that the nursing home boasted about the qualified staffing in its dementia unit when, in reality, it was staffed by its least qualified aides.

Our experience proves that if you can elevate your informed consent claim to the level of a battery or fraud, the claim can be successfully handled.  In Part 2 of this blog we will discuss how to use the concept of informed consent to overcome jury bias in medical negligence lawsuits.

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