Prior to surgery, the physician performing the surgery will typically obtain the patient’s informed consent. The process of obtaining informed consent involves advising the patient of any potential risks to the surgery and asking if the patient understands the risks and consents to the surgery regardless of the risks it presents. A failure to obtain informed consent can form the basis of a surgical malpractice claim if the patient suffers harm as a result of the surgery.
Determining whether valid consent was obtained is a fact-specific analysis. Recently, a New York court evaluated whether the Dead Man’s Statute precluded a deceased patient’s written consent form from evidence in support of the defendant surgeon’s motion for summary judgment. If you suffered harm due to surgical malpractice you should speak with a trusted Syracuse medical malpractice attorney as soon as you can to discuss whether you may be able to recover compensation.
The Plaintiff’s Decedent’s Surgery
Reportedly, the plaintiff’s decedent, who suffered from morbid obesity and sleep apnea, underwent arthroscopic surgery on his knee. The surgery was performed without incident by the defendant surgeon, while the decedent was under general anesthesia administered by the defendant anesthesiologist. Immediately after the surgery, the decedent was unresponsive. He then went into cardiac arrest. The surgical team made efforts to resuscitate the decedent, but they were unsuccessful, and he died.
It is reported that the plaintiff subsequently filed a medical malpractice lawsuit against the defendants, in which she alleged that the surgery should not have been performed and anesthesia should not have been used in light of the decedent’s conditions. She also set forth a claim of lack of informed consent. The defendant surgeon filed a motion for summary judgment, which the court denied. The defendant then appealed.
Evaluating a Claim for Lack of Informed Consent
When the plaintiff alleges a medical malpractice action based on lack of informed consent, he or she must prove that the medical care provider failed to disclose the risks of the surgery and alternative methods of treatment and that a reasonably informed patient in the same position would not have consented to the surgery. The plaintiff must also show that the lack of informed consent is the cause of the harm alleged. Here, the defendant surgeon established his right to judgment as a matter of law on the lack on informed consent claim by producing an affidavit, deposition testimony, and the written consent form that was signed by the decedent.
The court was not persuaded by the plaintiff’s argument that the Dead Man’s Statute barred the defendant surgeon from relying on the decedent’s written consent form. Under the Dead Man’s Statute, a party cannot offer testimony concerning communication with the decedent. The Statute does not bar the admission of documentary evidence, however, as long as the document is verified by a third party. The court found that the decedent’s written consent was properly authenticated, and therefore, it was not barred by the Dead Man’s Statute. Thus, the court granted the defendant’s Motion for Summary Judgment.
Meet with an Experienced Surgical Malpractice Attorney to Discuss Your Case
If you were injured due to a negligently performed surgery, you should meet with an experienced surgical malpractice attorney to discuss the circumstances surrounding your harm. The experienced Syracuse surgical malpractice attorneys of DeFrancisco & Falgiatano Personal Injury Lawyers will evaluate your case and help you develop strong arguments in hopes of recovering the maximum amount of compensation available. You can reach us at 315-479-9000 or through the online form to schedule a free and confidential meeting.