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Dr. Botched removal of kidney stone question of informed consent.

CASE ON POINT: Oghia v. Hollan 2011-CA-000779-MR KYCA (3/16/2012)-KY

ISSUE: Ordinarily, a trial judge is vested with significant discretion in the conduct of any trial before him or her. Appellate courts are extremely reluctant to interfere with a trial court's conduct of a trial and rulings in any case, unless the conduct of a trial judge is so outrageous the justice demands that an appellate court intervene. Was this such a case?

CASE FACTS: In the early morning of January 16, 2007, Edwin Hollan sought treatment at Kentucky River Medical Center for a kidney stone that had lodged in his ureter below his left kidney. Dr. Michael Oghia attempted to remove the stone by inserting a ureteroscope through Edwin's urethra and into his ureter. The ureteroscope had a basket-like device on the end which Dr. Oghia used to capture the stone. When the doctor attempted to remove the ureteroscope and stone, he encountered difficulties and ultimately had to perform open surgery to remove the ureteroscope. During that surgery, Dr. Oghia discovered the Edwin's Ureter had been damaged. Recognizing that he was not equipped to repair the damage. The doctor had Edwin transported to the University of Kentucky medical Center (UK) for additional surgery. At UK, Dr. Stripe advised Edwin that he could attempt to use a portion of his intestine to construct a ureter, a procedure with limited success and likely permanent incontinence, or he could remove Edwin's left kidney. Edwin elected to udergo kidney removal surgery. Following his recovery, Edwin filed a medical malpractice suit against Dr. Oghia, alleging that he did not adequately inform him of altemative modalities. Edwin also alleged that Dr. Oghia should have removed the kidney stone using a less invasive and less risky procedure. At the conclusion of a three-day jury trial, the jury found in favor of Dr. Oghia with regard to the surgical procedure, but in favor of Edwin with regard to the adequacy of the information provided by Dr. Oghia. Based on its finding that Dr. Oghia had not adequately disclosed the risks of the surgery, the jury awarded Edwin S596,819.00 in compensatory damages. Dr Oghia raised two issues. The first was the fact that after the trial judge gave his instructions to the jury, Dr. Oghia's motion for a mistrial was denied by the trial judge. The second was with regard to the conduct of the trial judge. nowithstanding the fact that a trial judge is vested with signifiecant discretion in the conduct of a trial and even appellate court are reluctant to interpose to control the exercise of such discretion.

COURT'S OPINION: The Court of Appeals of Kentucky affirmed the judgment entered by the trial court. The court held, inter alia, that the trial court had not erred, either in its instructions to the jury nor in it denial of Dr. Oghia's motion for a mistrial. The court noted that "a mistrial should be granted only when no other remedy will provide relief to the moving party. .

LEGAL COMMENTARY: As to the issue of whether or not Edwin had given his informed consent to the procedure the court noted the Dr. Oghia contended that it was Edwin's duty to read the consent lbrm and the burden was on the patient to ensure that lie was aware of the risks as well as alternatives to the procedure used by Dr. Oghia. However. the court refuted the doctor's contention, noting that Dr. oghia had not offered any statutory or case law precedent to support is contention that a patient has the duties the doctor outlined in his argument. Conversely, the court observed that Edwin had cited case precedent to support his position that the duties Dr. Oghia would impose on the patient. In fact, one case cited by Edwin involved a situation in which a trial court found contributory negligence on the part of a patient involving the issue of inihrmed consent, or the lack thereof The court noted that on appeal in that cas the Supreme Cowl of Wisconsin held, in pertinent part, that contributory negligence may apply in informed consent cases, but only in certain extraordinary circumstances! This the court observed was not one of them. As to the issue of whether the trial judtze had erred in denying Dr. Oghia's motion for a mistrial, the court looked very carefully at the record to determine if there were any conduct whatsoever by the trial judge, which would have justified the denial of his motion for a mistrial. Again, the court was satisfied that the trial judge comported himself properly, holding numerous side bar conference outside of the hearing of the jury and in many situations ordering the jury out of the courtroom whenever it appeared that the arguments to be made by counsel as to the admissibility of evidence as well as any other matter which the jury should not have heard. Consequently, the court found that there was no basis whatsoever to find that the trial judge had acted or made any ruling to justify the granting of Dr, Oghia's motion Ity a mistrial. Accordingly, the court affirmed the entry of judgment for Edwin.

AL: Can Parent Represent Minor Child Pro Se? Court Ruled Parents Can't Represent Pro Se

CASE FACTS: On October 22, 2010, F.J.P., appearing pro se, tiled a complaint in the trial court naming "Minor Child A" as the plaintiff and "USA Womens and Children Hospital" (hospital) as the defendant. The complaint alleged that A had suffered damages as a result of the negligence of the nurses who had treated A during a stay at the hospital. Specifically, the complaint alleged that A was seeking $ 1,000,000 in damages "for negligent medical malpractice, endangering an infant, causing a trauma, emotional hurt, disfigurement, defamation of character, slander, pain and suffering, breach of confidential medical documentation, harassment, abuse, embarrassment, and mistaken gender and all other injuries so [sic] may be discovered." The hospital filed a motion to dismiss based on the doctrine of sovereign immunity. On November 19, 2010, F.J.P. filed a motion seeking to file and amended complaint. The trial court granted the motion. On February 2, 2011, F.J.P. filed an amended complaint naming as defendants "Dr. Smith," "RN Amy Davis," and "RN Hale" On February 11, 2001, the trial court entered an order granting the hospital's motion to dismiss. In another order entered that same day, the trial court indicated that, although proper service had been made upon Amy Davis, proper service had not been perfected as to the other individual defendants named in the amended complaint. Nurses Davis and Hale filed a motion to extend the time for them to tile an answer to the complaint, which was granted by the trial court. The nurses filed motions to dismiss, or in the alternative motions for summary judgment. The trial court granted the nurses' motion to dismiss. F.J.P. filed a document entitled "Reply" in an appeal to the court. The trial court treated it as notice of an appeal. Accordingly, the trial court transferred the case to the Alabama Supreme Court. The Supreme Court transferred the case to the Alabama Court of Civil Appeals.

COURT'S OPINION: The Alabama Court of Civil Appeals dismissed the appeal of F.J.P. The court held, inter alia, that although there was no precedent in Alabama law as to whether a nonlawyer parent could represent their minor child in a lawsuit, it recognized that there was an Alabama Supreme Court case which recognized the right of an adult to represent himself or herself, Pro Se, in a case in which he was named as a defendant. However, the court also found cases which held that non-attorney parents could not represent their minor children in suits brought by minor children against third parties. Noting that the suit was brought solely on behalf of the minor child, and that no part of the suit was on behalf of either parent, the court found it compelling that the best interests of the minor child were at stake. The court stated that courts have universally held that parents may not represent their minor children in such cases! A v. Davis, 2100832 AL Civ (12/16/2011)-AL

FL: New Judge Denied Motion for New Trial: Appellate Court Ordered New Trial for Estate

CASE FACTS: This case involved a medical malpractice claim by the estate of a deceased child against the doctor who treated him before his death. After the jury returned a verdict in favor of the defense, the Estate file a motion for a new trial based on the improper conduct of the defense counsel, some of which was apparent from the record and some of which was not reflected in the record. The record revealed that notwithstanding the numerous admonitions the trial judge had given to the attorney for the defendant at side bar conferences, they were outside the hearing distance of the jury and not in the case record. Unfortunately, notwithstanding the repeated failures of counsel for the defendant to follow the directives of the trial judge, the attorney for the estate failed to file a motion for a mistrial during the course of the trial. The Estate appealed the new judge's denial of its motion for a new trial.

COURT'S OPINION: The Florida Court of Appeals reversed the order of the successor judge's denial of the estate's motion for a new trial and remanded the case for a new trial. The court held, inter alia, that the successor judge was not in a position to fairly rule on the merits of the motion for a new trial due to the fact that he was not presiding and did not witness the conduct complained of by the attorney for the Estate on the estate's motion for a new trial. The court found this was an extraordinary case in which the successor judge should have granted a new trial on the grounds that he could not fairly rule upon the motion for the new trial by the Estate since he was not present during the trial and was not aware of what had transpired, which was not in the record, especially the numerous admonitions the trial judge gave the attorney for the defendant, which were not in the record Thus, the court concluded that since the Estate failed to file a motion for a mistrial during the course of the trial the appellate court was required to follow a fundamental analysis. The court set forth the criteria as follows: First, the party moving for a new trial "must establish that the argument being challenged is improper." Second, the party must then establish that the argument is harmful, which requires that "the comments be so highly prejudicial and of such collective impact as to gravelly impair a fair consideration and determination of the case by the jury. In sum. the improper closing argument comments must be of such a nature that they reach into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments." Third, the improper comment must be incurable, meaning that the sustaining of a timely objection and a curative instruction "could not have eliminated the probability that the unobjected-to argument so damaged the fairness of the trial that the public's interest in our system of justice requires res a new trial." Sullivan v. Kanarek, 2D08-6242 FLCA2 (2/17/2012)-FL


Meet the Editor & Publisher: A. David Tammelleo, JD. is a nationally recognized authority on health care law. Practicing law for over 40 years. he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical. nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law Journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecture, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law. Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Case of the Month
Publication:Medical Law's Regan Report
Article Type:Case overview
Date:Mar 1, 2012
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