QUESTION
Is not informing a patient of all or any major risks malpractice?
Asked on Feb 03rd, 2013 on Medical Malpractice - Pennsylvania
More details to this question:
I went to a Surgent to have gastric bypass surgery. It was a three month period before I could have the surgery. During that time he went over 3 different options, the bypass, the sleeve, and lap band. I told him all I want is the bypass, he said that's fine he just wanted to give me the options. During all aponitments whenever the procedure was brought up all we went over was pre and post op stuff for the bypass. Even the post opt patient care manual they gave me 3days befor surgery was for the gastric bypass. After waking up from the surgery I was informed they did the sleeve, due to too much fat in the way, but after I lose some more weight They can go back in to have it changed to the bypass. I never agreed or wanted the sleeve nor did I agree to it, I specifically stated to the surgeon in front of my wife that if we can't do the bypass I don't want surgery at our first meeting. I was never given any of the risks or even aftercare instructions for this surgery.
1 ANSWER
Jerry Meyers
The potential claim you describe would be difficult to pursue. Under rather restrictive legislation (Mcare Act) in 2003 the standard of proof in informed consent cases was changed. Whereas before, your evidence that you wouldn't have subjected yourself to the subject surgery would have been submitted to a jury. If believed, you might have received an award of damages. The standard now is that of a reasonable person similarly situated and whether they would have consented to the surgery if presented with all the risks, benefits and alternatives. Moreover, you nowhere describe an injury other than the surgery you didn't request. You also do not describe having suffered any complication, which I presume you would have mentioned if if you suffered serious complications. I wouldn't represent you in this claim because of the extreme difficulty in achieving any meaningful resolution for you.
Answered on Feb 05th, 2013 at 11:32 AM