Jeffrey Segal, MD, JD

We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Assumption of risk versus informed consent..” This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

“The patient signed a consent.  He understood the risks. Why can he sue me now??? Why can’t my lawyer just present the signed consent and get this case dismissed?”

You have probably heard it from colleagues.  You may have even asked it yourself.

The subtext is a reference to an affirmative defense (a defense the defendant must plead and prove) called “assumption of risk.”

What is assumption of risk as a legal defense?

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We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Can Doctors Form a Union”. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

Can doctors form a union? Not a civil union. But a legal entity to “collectively bargain.”

Doctors are a ferociously independent lot – the proverbial unherdable cats – but as financial and regulatory pressures mount –  this question is increasingly asked: Can we form a union to level the playing field?

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We continue with our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Dealing with a sham peer review.” This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

The purpose of peer review is to improve medical care.  However, all too often this process is corrupted to carry out vendettas against disfavored physicians under the guise of improving the quality.

This is not to say all such reviews are shams.  Therefore, if you find out you are being reviewed, the first issue is whether there is any validity to the alleged claims.

If so, hire an attorney knowledgeable in the healthcare disciplinary domain. He can engage the hospital or group on your behalf to formulate a plan of corrective agreed-upon steps, a specified end-point, and objective criteria for evaluating whether you met the required standards. The plan should also specify that even if your privileges are limited as a result of the agreement, that no report will be made to the Data Bank (NPDB) during the period of correction and re-evaluation. Alternatively, if such a report must be made because of NPDB regulations, see if an agreement will allow the report to be withdrawn or amended if you successfully complete the program.

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Not a common headline: “Doctor Arrested for Perjury in Boone County.” Actually, it’s not a common headline in any county. Apparently, Dr. Melvyn Flye, a St Louis surgeon, testified in a medical malpractice case involving gallbladder surgery performed in 2010. The media noted that Dr. Flye allegedly lied under oath about his own surgical experience, how often he had been sued for malpractice, and the status of his surgical credentials at a St. Louis hospital. He was released on $50,000 bond.

Every week I receive a call from a doctor stating an expert witness lied– and he or she committed perjury.

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Many doctors worry about a single lawsuit.

In Indiana, clinicians and their carriers are responsible for the first $250,000 of a judgment or settlement. Its Patient’s Compensation Fund covers any excess liability up to $1 million.

Dr. Mark Weinberger, a sinus surgeon, was sued by over 300 patients and recently the Indiana Patient’s Compensation Fund wrote checks totaling $63 million. Dr. Weinberger’s carrier added $3 million to the pile.

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by Guest Blogger: Dr. Michael Rosenblatt

As if you don’t have enough to deal with: Recently in Ohio, the charge of “conspiracy” was added to Government armamentaria to “control” what they regard as “unnecessary tests and procedures.” http://portsmouth-dailytimes.com/bookmark/23001534 In this case, CT scans and treatments for “non-existent” osteo-arthritis were at issue. You may not think of yourself as an audit target. But if you do a larger number of specific codes (more than others in your local specialty), auditors can use computerized forensics to separate you out. For them, it’s as easy as your generating a monthly bank balance on your PC. Then, they will want to see if you documented them. If you didn’t, it’s fraud.

Every healthcare provider should understand the need to prove necessity of tests and procedures. This rests entirely upon the data in your records. There is an excellent place for at least two more (convenient) methods to do this:

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4. Will including a documented discussion of a risk or complication protect me from a lawsuit if that problem actually then occurs, since the patient agreed to risk it?

No

Many doctors misinterpret a patient being informed of a potential problem and still electing to go ahead as an “assumption of the risk” situation that would then bar that patient from recovering for an injury incurred as a result. They believe the consent to be a “get out of being sued card”.

The actual fact is that just because something is a known complication or a possibility that was discussed, and which the patient indicated a willingness to risk in hopes of a greater benefit, does not mean that if that problem occurs that it was not the result of negligence. The fact that the patient was aware that it might happen is irrelevant because, in consenting, the patient accepted that sometimes even a perfectly done procedure may have a complication but did not thereby also consent to having the procedure performed negligently, causing the same complication.

Therefore, if the patient-turned-plaintiff can prove that the problem occurred as a result of a breach of the standard of care, that he or she knew that it might happen if the procedure were actually done perfectly does not restrict them from suing for damages that resulted from it.

By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

Consenting a patient is really the entering into of a contractual agreement that will govern the medical care that you will engage in and, as in all contracts, that process requires a meeting of the minds to be valid.

The document called a “consent” is, like a written contract, merely a legal formality that memorializes the end result of that process.

The only role it really plays in a medical malpractice action is when it is not there at all or looks so deficient on its face that it raises serious questions about the propriety of the care ( e.g.; the physician is not named, suggesting that there may have been “ghost surgery”, or the patient’s signature is a scrawl that suggests that they may not have been competent when they signed, or the document itself is post-dated, suggesting that it was only filled-in after the fact).

In fact, since a malpractice claim in which a patient is alleging “lack of informed consent” is actually the patient saying “I did not know something critical to my decision about my care because you did not tell me, and I would not have made the choice about my care that led to my present problem if you had told me what I needed to know”, a signed piece of legal boilerplate is no bar at all to that claim proceeding. At most, it creates a rebuttable presumption that the patient agreed as an informed person, but that simply moves the case forward to the presentation of evidence to provide that rebuttal.

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