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?
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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.
In these circumstances, there are a couple of liability theories that may support a lawsuit against the first surgeon. One theory is medical malpractice, which would require showing that the first surgeon deviated from the standard of care expected in the medical community. This means that the surgeon failed to provide treatment that a reasonably competent surgeon would have provided under similar circumstances. If it can be proven that the surgeon's negligence directly caused Smith's complications and the subsequent worsening of those complications due to delayed treatment, it could strengthen the medical malpractice claim.
Another theory that might be relevant is negligence, in terms of failing to provide proper informed consent. Informed consent requires the surgeon to adequately explain the risks and potential complications of the surgery to the patient, allowing them to make an informed decision about whether or not to proceed. If it can be shown that the first surgeon did not provide adequate information to Smith or failed to obtain his informed consent, this could be a basis for a negligence claim.
To evaluate both surgeons' opinions and actions, specific medical record content might be used. This may include surgical notes, progress notes, medication records, diagnostic test results, and any documented communication between the surgeons and the patient. These records can provide valuable insights into the treatment provided, the complications identified, and the actions taken by both surgeons.
In addition to the medical records, organizational policies and procedures may also be examined. This could include reviewing the hospital or surgical center's policies for patient care, surgical protocols, informed consent procedures, and any documentation related to physician supervision and oversight. By assessing these policies and procedures, it can be determined if any institutional failures contributed to the situation or if there were any violations of established protocols.
Ultimately, a thorough evaluation of the medical records, along with an examination of individual actions and organizational policies, can help determine the strength of the liability theories and support a potential lawsuit against the first surgeon.
In these circumstances, there are several liability theories that could support a lawsuit against the first surgeon. Here are a few theories that might be applicable:
1. Medical Negligence: Smith could argue that the first surgeon failed to meet the standard of care expected from a reasonably competent surgeon. This theory would require proving that the surgeon breached their duty of care towards Smith, and that this breach directly resulted in Smith's pain and worsened complications.
2. Informed Consent: Smith could claim that the first surgeon failed to adequately inform him of the risks associated with the surgery, leading to complications that were not properly disclosed. To establish liability under this theory, it would be necessary to demonstrate that Smith would have declined the surgery if he had been fully informed, and that a reasonable person in his position would have made the same decision.
3. Abandonment: Smith could argue that the first surgeon improperly withdrew from his case without ensuring appropriate post-operative care or arranging for a suitable replacement. This theory would require proof that the surgeon severed the doctor-patient relationship without reasonable justification and without providing for the patient's ongoing medical needs.
To evaluate both surgeons' opinions and actions, specific medical record content may be used. This could include surgical reports, pre- and post-operative notes, nurse and anesthesiologist notes, imaging results, laboratory reports, and any other relevant documents that chronicle Smith's medical treatment. These records would be crucial in assessing the surgeons' actions, timelines, communication, and documentation of Smith's condition and complaints.
In addition to individual surgeon liability, organizational policies and procedures may also be examined. This could include policies related to informed consent, surgical protocols, patient follow-up, and complaint resolution. These policies could shed light on whether the first surgeon's actions were consistent with the organization's established standards and protocols.
Overall, a comprehensive evaluation of the medical records, surgeon opinions, and organizational policies and procedures would be necessary to determine the viability of a lawsuit and the potential liability of the first surgeon.