0:00

So there's another issue that I'd like to discuss, um,

0:05

which is informed consent of it,

0:08

I think can cause physicians some distress.

0:11

But let's take a look at it.

0:13

So basically an allegation of lack

0:16

of informed consent is the patient

0:19

or the plaintiff saying, if I had been informed

0:23

of all the risks of the procedure

0:26

or sometimes not undergoing the procedure,

0:29

I would've elected either to do it

0:31

or to not undergo the procedure far more typically.

0:35

And these days, I think that that is, um,

0:40

it, it is something that you just don't see as often.

0:43

And that is largely because in a lot of states, the concept

0:47

or the allegation of informed consent

0:49

or lack of informed consent has been subsumed under the

0:53

general negligence process.

0:55

Meaning that providing informed consent is such a standard

1:01

everyday thing that, um, it, it's an element that,

1:05

or a, an allegation that we don't really go to.

1:09

And additionally, if a patient is harmed,

1:13

it's probably going to be more of an allegation

1:15

that the procedure was not done properly

1:18

or something was not done properly in and of itself.

1:22

Not that a document wasn't signed,

1:25

but there are some states that will say, well, failure

1:28

to obtain informed consent is, uh, you know,

1:32

a damage within itself.

1:34

But again, uh, you've gotta meet the elements of what, of,

1:39

of a lawsuit, duty, breach, causation and harm.

1:41

In other words, how is the plaintiff harmed

1:44

because informed consent was not provided

1:47

or adequate informed consent was not provided?

1:50

And again, I'm gonna go back to if, if I'm not dealing

1:54

with someone who is substantially injured through a process,

2:00

I'm not interested in bringing an allegation simply

2:03

because a box didn't get checked.

2:05

There needs to be substantial damage that was caused

2:09

by actual negligence.

2:11

And I just think that's an important point to remember.

2:16

The other topic that I'd like to bring up, uh, is the,

2:19

the Latin term ra aquir, which it translates to

2:24

the thing speaks for itself.

2:27

And what it's in the concept in law is that in pleading ra

2:32

aqui or making that allegation against a physician,

2:35

it's basically, I don't have to essentially do anything else

2:39

because it is so clear that there was negligence that,

2:44

um, basically sort of case over, if you will.

2:48

And again, this is largely something

2:50

that has been subsumed under the general

2:52

negligence umbrella.

2:54

But in terms of breaking down, uh, the allegation of qui,

2:59

or it means that whatever was happening was under, uh, this,

3:04

this damage was caused, uh, by something

3:07

that was under the exclusive control of the physician.

3:12

And the plaintiff did not in any way contribute

3:15

to this occurring

3:16

or to the damages that occurred, um, because of

3:22

And that this doesn't happen

3:25

unless there is negligence.

3:28

And the probably the easiest example that I can give you,

3:32

uh, as a radiologist is if you're reading a case

3:35

and you, uh, in a post-op patient

3:38

and you see that there was an instrument left in the body,

3:43

um, that's pretty self-evident.

3:46

But again, that in my experience

3:49

and opinion, largely that's just going

3:51

to get brought under the general negligence umbrella.

3:53

It doesn't need to be a separate case.

3:56

Um, you may have to be involved to testify, yes,

4:00

you read a film and yes, you saw, um, forceps

4:03

or something that were left inside the body,

4:05

but that's going to be taken care

4:07

of under the general negligence umbrella.

4:11

I think the one piece that has to be proven as well is

4:15

that the patient suffered damages by having that instrument

4:20

remaining in the body when

4:21

that damages may be a second operation to remove it,

4:25

or it may be because of discomfort or bowel perforation

4:28

or injury to the abdominal organs

4:30

that may have occurred secondary to the leaving that

4:34

device in the body.

4:36

So you still have to fulfill the damages required. Oh,

4:41

Absolutely. There must

4:42

be a damage piece to it.

4:44

Um, that, and again, I'm gonna say that

4:46

as a plaintiff's medical malpractice lawyer, it has to be

4:50

a substantial damage.

4:51

I've, I've looked at many cases

4:54

where a sponge gets left in something like that.

4:57

It's caught, you know, very quickly post-op, they go in,

5:02

take it out, and I tell, they say, well, you know,

5:05

they left a sponge in me.

5:07

And I say, well, what are your damages?

5:09

Now I've done cases where they've done that

5:10

and there's, you know, tremendous amounts of infection

5:14

and other problems that result from that.

5:16

You say, okay, let's take a look at it.

5:18

But if somebody's going in and removing something quickly

5:21

after the fact and there's,

5:23

they're back out the door, there's not a case.

5:26

So you really have to again, look at that damage piece

5:30

of this in making that determination.

5:34

The other piece that I would say with regard to

5:37

that is the second operation to remove the sponge

5:41

is often still paid for by your medical insurance,

5:46

uh, health insurance.

5:47

And therefore you don't really have

5:50

that much damages from the standpoint of the expense of

5:53

that second operation.