posted by Lyiza on .
A surgeon performs elective surgery on Patrick John Smith. Smith later complains to his surgeon about pain resulting from the surgery. His surgeon dismisses his complaints as not credible and eventually withdraws from the case. Smith is then treated by another surgeon, who determines that Smith developed complications from surgery and that the delay in treatment has made the complications worse. Smith sees an attorney about a possible lawsuit against the first surgeon.
Describe, in your own words, the liability theories that support a lawsuit under these circumstances and why. What specific medical record content might be used to evaluate both surgeons' opinions and actions? Are there any organizational policies and/or procedures that may be examined as well?
That's your assignment.
What is your question about your assignment?
The typical theories surrounding a malpractice claim are:
Lack of Due Care: The professional did not live up to the governing standards of professional care and conduct.
Lack of Informed Consent: In a health care context, the professional did not adequately inform the patient of risks associated with a course of treatment, such that the plaintiff could understand and knowingly consent to the treatment, or could make an informed choice between multiple treatment options.
Abandonment: The professional at some point abandoned the plaintiff, rather than fulfilling duties owed to the patient;
Vicarious Liability: (Also "negligent supervision") A third party, perhaps a clinic or hospital, had a duty to properly screen and supervise the professional it permitted to offer services from its premises, and shares liability for the plaintiff's injuries due to its failure to satisfy that duty (e.g., by authorizing an incompetent doctor to offer services to patients of the facility).
Injury to a Third Party: The professional engages in conduct which creates some form of duty to a third party, and then engages in conduct which causes harm to that third party. For example a psychotherapist might meet with a patient's spouse as part of a course of treatment, and then engage in professional malpractice or misconduct which results in harm to the spouse (such as causing the breakdown of a marriage).
I think here you have Lack of Care and Abandonment involved in your case.