Medical Error Lawyer Case, Pt.  4

SURGEON ALLEGEDLY FAILS TO GET INFORMED CONSENT FROM PATIENT

In a medical error lawyer case, a surgeon allegedly fails to get informed consent from the patient for a vaginal operation that pierced the patient’s rectum.
Continued from my last post, here’s the conclusion of the medical error lawyer case that I have been discussing in my last three posts. During rectocele repair surgery, Vivian’s rectum was accidentally torn. Vivian developed infections and hernias. She required many further procedures over the next several years.

At the conclusion of an eleven-day trial, the jury voted seven to one that Dr. Quartell did not deviate from the applicable standard of care in recommending the surgery. The jury also found that Vivian gave informed consent. The doctors had won.

Vivian’s medical error attorney appealed. The medical error lawyer first contended that the trial court erred in granting Dr. Hatangadi’s motion to bar use of certain out of court testimony the doctor gave.

Before trial, Dr. Hatangadi testified he would not have participated in Vivian’s surgery if he had known that this patient’s only complaint was the incomplete emptying of her bladder. The trial court barred use of this testimony at trial on the ground that it would have a tendency to confuse the jury.

The appeals court upheld the trial judge’s ruling. The appeals judges noted that the trial judge did not bar Vivian from exploring the scope of Dr. Hatangadi’s opinions about the advisability of Vivian’s surgery through other questions at the trial.

The medical error lawyer further contended that the trial judge erroneously permitted defense expert Dr. Mokrzycki to show the jury two photographs he had taken of a rectocele on a patient he had treated ten years earlier. The medical error lawyer argued that the photographs were not relevant. They did not depict Vivian’s condition.

But the appeals judges again found for the doctors. When Dr. Mokrzycki used the photographs to assist him in explaining the nature of a rectocele, he did not suggest they depicted Vivian’s rectocele.

Next, Vivian’s medical error lawyer argued that the trial judge should have excluded evidence regarding Vivian’s arrest in November 1999. Her husband had filed a complaint of domestic violence against her. She contended the details of that incident were not relevant to the issues in the malpractice case. The revelations prejudiced Vivian in the eyes of the jury.

But Vivian lost on this issue, too. The judges ruled that Vivian herself had put the quality of her marital relationship at issue by seeking compensation for her husband’s loss of her services.

Vivian was in the process of getting a divorce. But Vivian testified that the problems in the marriage did not begin until after the rectocele repair surgery. Her husband testified they had a close relationship before 2006. He claimed Vivian’s post-surgical condition left her unable to engage in sexual relations. He also said that the couple had no thoughts of divorce at the time of the 1999 incident. It was a one-time thing.

The appeals court conceded that the trial judge should have more narrowly limited the doctors’ use of the domestic violence evidence. But the judges held that the incident’s inclusion in the long overall presentation to the jury could not have affected the verdict.

In sum, the appellate court concluded that Vivian had her day in court. She was not entitled to a new trial before a different jury.

I respectfully disagree with this ruling. In particular, the domestic violence evidence may well have prejudiced the jury against Vivian.

It also appears that Vivian’s medical error lawyer might possibly have made some different decisions to give her a better chance of winning. For example, had the medical error lawyer not claimed loss of services damages for the husband, the defense would have had no excuse to raise the domestic violence history.

As in any similar case, it is very important for the victim of a medical error to choose an experienced medical error lawyer to represent her.