Can Successful Malpractice Plaintiff Sue Re Informed Consent?CASE ON POINT: Flanagan v. Wesselhoeft, 2001 WL96567 A.2d -- RI ISSUE: Can a plaintiff sue a physician for medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. , recover damages, and later sue for damages for the physician's failure to obtain informed consent? That was the issue with which the Rhode Island Rhode Island, island, United States Rhode Island, island, 15 mi (24 km) long and 5 mi (8 km) wide, S R.I., at the entrance to Narragansett Bay. It is the largest island in the state, with steep cliffs and excellent beaches. courts were confronted in this unusual case which went to the Rhode Island Supreme Court The Rhode Island Supreme Court is the court of last resort in the U.S. State of Rhode Island. It consists of a chief justice and four justices. The current Justices of the Rhode Island Supreme Court are: Chief Justice Frank J. not once but twice. CASE FACTS: The case has previously been before the Rhode Island Supreme Court. On August 30, 1989, Donna Flanagan brought her daughter, Ashley, then eleven months old, to Dr. Conrad Wesselhoeft, a surgeon, for a consultation with respect to an enlarged cervical node below Ashley's right ear. Ashley was brought to Dr. Wesselhoeft on the recommendation of her pediatrician, Dr. Bickford Lang. Dr. Wesselhoeft met with Mrs. Flanagan and Ashely in his office for approximately five minutes. He examined the child, palpated the node, and informed Donna that the node would have to be "removed by excision and then submitted to a biopsy." Mrs. Flanagan initially sued Dr. Wesselhoeft for medical malpractice in Providence County Superior Court. The court rendered judgment for Dr. Wesselhoeft. Ms. Flanagan appealed. The Rhode Island Supreme Court reversed the judgment of the lower court and remanded the case for trial. After a jury trial was held, the jury returned a verdict for the plaintiffs in the sum $209,446 for the child and $41,889 for the mother. Subsequently Mrs. Flanagan brought suit against Dr. Wesselhoeft for his failure obtain "informed consent" for the surgery. She alleged that the only risks that were discussed by Dr. Wesselhoeft in relation to the surgery was the "possibility of bleeding and infection." Dr. Wesselhoeft did not discuss the likelihood that the node was malignant. He did state that "the only way to find out was to remove it surgically." Between the date of the first consultation and the surgery, no further discussion took place. The surgical procedure performed by Dr. Wesselhoeft was completed within a period of approximately six minutes. Subsequent to Dr. Wesselhoeft's surgery, Mrs. Flanagan observed that Ashley's shoulders were "uneven." It appeared that her right shoulder seemed to droop, and her scapula scapula /scap·u·la/ (skap´u-lah) pl. scap´ulae [L.] shoulder blade; the flat, triangular bone in the back of the shoulder. scap´ular scap·u·la n. pl. "protruded" from her back. This was a condition later described as "winging." Ashley was subsequently diagnosed as having a probable severed spinal accessory nerve accessory nerve n. A nerve that arises by two sets of roots: the cranial set, arising from the side of the medulla, and the spinal set, arising from the ventrolateral part of the first five cervical segments of the spinal cord. in the area of her neck. Ashley was seen by Dr. Melvin Rosenwasser, who did exploratory surgery Exploratory surgery is a diagnostic method used by doctors when trying to find a diagnosis for an ailment. It can be performed in both humans and animals, but it is far more common in animals. and confirmed that the child's spinal accessory nerve had been severed in the course of the surgery done by Dr. Wesselhoeft. Dr. Rosenwasser was able to locate the severed nerve endings, which had become embedded in scar tissue scar tissue n. Dense, fibrous connective tissue that forms over a healed wound or cut. . He was able to successfully reconnect the severed nerve endings, thereby permitting the spinal accessory nerve to come into apposition apposition /ap·po·si·tion/ (ap?o-zish´un) juxtaposition; the placing of things in proximity; specifically, the deposition of successive layers upon those already present, as in cell walls. without tension. A biopsy of the node earlier removed by Dr, Wesselhoeft revealed the lymph node lymph node Small, rounded mass of lymphoid tissue contained in connective tissue. They occur all along lymphatic vessels, with clusters in certain areas (e.g., neck, groin, armpits). to be normal. No sign of malignancy was revealed. After Ashley's discharge from Dr. Rosenwasser's care, she eventually made a full recovery. Mrs. Flanagan sued Rhode Island Hospital Rhode Island Hospital is a private, not-for-profit hospital located in Providence, Rhode Island. The hospital has 719 beds, and an acute care hospital and an academic medical center. Rhode Island Hospital was founded during the American Civil War in 1863. , a resident physician, and Dr. Resselhoeft. However, the claims against the resident physician and the hospital were resolved. The case against Dr. Wesselhoeft proceeded to trial in Superior Court. After a jury trial, the jury returned a verdict in favor of the plaintiff. COURT'S OPINION: The Rhode Island Supreme Court affirmed the judgment of the Superior Court for the plaintiff. The court rejected the defendant's contention that the trial justice committed reversible error reversible error n. a legal mistake at the trial court level which is so significant (resulted in an improper judgment) that the judgment must be reversed by the appellate court. in refusing to allow Dr. Wesselhoeft's counsel to question the plaintiff as to whether she would have consented to the surgery even if she had been informed of all of the material risks involved. In the course of the trial, Mrs. Flanagan testified that had she been informed of a risk of injury to the spinal accessory nerve and had she been apprised of the alternatives, such as observation and/or needle biopsy needle biopsy n. Removal of a specimen for biopsy by aspirating it through a needle or trocar that pierces the skin or the external surface of an organ and continues into the underlying tissue to be examined. Also called aspiration biopsy. , she would have declined to authorize the excision of the enlarged node. LEGAL COMMENTARY: It was undisputed that Ashley's parents never were informed of any risks other than bleeding and infection. Dr. Wesselhoeft maintained that he left it to the anesthesiologist Anesthesiologist A medical specialist who administers an anesthetic to a patient before he is treated. Mentioned in: Anesthesia, General, Appendectomy, Parathyroidectomy anesthesiologist to discuss the risks of brain damage and death. The plaintiff's expert, Dr. Theodore Brand, testified that Dr. Wesselhoeft made no special attempt "to identify the spinal accessory nerve when he performed the cervical node excision, and that the failure to do so, in his opinion, was a deviation from the applicable standard of care. This testimony of plaintiff's expert witness, Dr. Brand, together with other evidence relating to the speed with which the operation was performed (approximately six minutes) and the testimony by Dr. Wesselhoeft that in the course of the operation he did not "see the accessory nerve" and that he "did not specifically look for it" convinced the Rhode Island Supreme Court to affirm the judgment of the trial court. |
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