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You were treated by many doctors over a period of time and cannot be sure which one was responsible or whether they all were.
A mugger sticks a knife in you and kills you or leaves you maimed for life. A surgeon sticks a knife in you, and kills you or leaves you maimed for life. What is the difference between the two? The mugger will go to jail and the surgeon will not. Why? Because you consented: you signed a consent form and gave the surgeon permission to stick the knife in you.
Before you decide whether you have a legitimate complaint for lack of informed consent, let us look at some of the ways you can consent to a doctor’s treatment and some of the ways a doctor can treat a patient without that person’s formal consent.
To work on a patient without anybody’s consent, a doctor must comply with four requirements: 1. The patient is in dire danger. 2. The patient is unable to consent. 3. If the patient is a child, a parent or guardian is not readily available. 4. It can be reasonably assumed that the patient would consent if able.
Does he have to tell you everything he is going to do? Go through the surgical operation step-by-step? Warn you about every possible complication? Discuss all possible alternative treatments, even if they are hardly ever used? What if the chance of a certain complication is one in a million? What if it is one in ten? How about a 50-50 chance?
Lawyers call this the Lay Standard, because it is based on what a layman (the patient) understands and not what a professional thinks she needs to understand.
A physician or dentist does not undertake to cure you. He only has to do his best for you according to the standard of care for his community or medical or dental specialty. If he did not, you have a legitimate complaint. If he did, you probably do not have a case, no matter how disastrous the results.
This means the doctor has to be up-to-date and in step with modern medicine or dentistry. For example, we know today that lumpectomy and simple mastectomy produce better results in most cases of breast cancer than the disfiguring, disabling radical mastectomy that was popular with breast surgeons for many years. Today, a doctor who rushes in and does radical breast surgery, without considering conservative treatment, is not up to the state of the art and is guilty of malpractice.
You have already read about the New Jersey case, which held that a podiatrist cannot be expected to treat a cardiac arrest, because he is only trained to work below the ankle. However, an Arizona podiatrist treated an elderly man for pain in the leg and lameness.
You are sitting outside the treatment room of a hospital when you hear one nurse say to another, “Dr. Jones is butchering that poor patient!” The patient is your mother.
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