I'd be interested to see what her OB-GYN's file looks like (IF she had pre-natal care.) Just because the hospital chart did not include her consent for tubal ligation does NOT mean that her physician's office chart did NOT include a copy of the document. At least in Louisiana, these forms come in triplicate so that there are copies for everyone's chart. If the physician really did sterilize her without consent, shame on him. You stopped one woman from having another child. This would save the tax payers a little money in the grand scheme of things while risking his medical license, the nurses' their licenses and the hospital its Joint Commission standing which could jeopardize its accreditation. It's just not ethically right, though it feels good to stop morons from populating the world without taking responsibility for their progeny. Trust me, we came across this situation on more than a daily basis at LSU since it is a charity hospital. Are you just going to sterilize them all?

3 years -- and that's probably the statute of limitation. There very well may have been extensive pre-filing negotiations and investigation. We just don't know.

Usually, this sort of thing isn't going to hit the public airwaves until a court case is filed because when that happens the case becomes public info and finds its way to a reporter.

These sorts of cases are very popular because the media tends to love to report stories where the doctors did a good thing for society by playing God, whilst the cash-seeking plaintiff threatens those docs' malpractice carriers. For some reason, we never get to hear about real cases of malpractice where the doc operated while on painkillers or anything of that nature.../rant.

As far as what sorts of causes of action could be filed here? Well, there's battery for one. That's a voluntary causing of harmful and unwelcome contact with the being of another. Typically in an operation setting, the patient gives consent for certain types of contact but withholds consent for others, e.g., if you're undergoing open heart surgery and have consented to that, but the doc decides to remove what he thinks is a pre-cancerous mole, that's a battery, although in that case, you might only get nominal damages (one dollar).

Negligence is the other possible cause of action, but it's going to be a fall back position.

Battery is an intentional tort, so once you have causation and intent down, you don't have to prove that you were damaged and that the defendant had a duty of care which was breached, etc. (battery does not require any showing of damages).

Also, with battery, if you can prove an intentional (knowing) mindset, that opens up the door in many places to a higher award of punitive damages. Here in Oklahoma, you have to prove that the doctor did the bad thing knowingly AND with malice AND had a willful disregard for human life (and you have to prove those things to both the judge and the finder of fact [jury] in doing so to get the caps off of the punitive damages, our law is wonky and bought and paid for by the insurance lobby though, [there's even a taxpayer-funded fund to handle any punitive awards larger than a certain amount], but that's the law here, I don't know what the law is elsewhere, probably not nearly as tough.

Long story short, for this case, battery > negligence, both claims tie into medical malpractice.

The reason the plaintiff is likely taking up the civil rights posture might be the applicability of the Government Tort Claims Act (which will limit the award for negligence if the doc is, for example, a V.A. employee rather than in private practice). If the GTCA applies, damage awards are significantly lower.

Because of that, there's the spectre of a civil rights claim I suppose... if they win there, they get attorney's fees (which in a medmal case is pretty big) plus a cash award, but no punitive damages against the government. She'd have to prove that under the color of state law, the state actors deprived her of civil liberties. I'm not a big civil rights guy, but I'm scratching my head as to how this could have been accomplished under the color of any law.

It sounds like a run of the mill medmal case... go in for an appendectomy, come out minus a leg because of a mixup in paperwork. The "deprived of constitutional rights," is in all likelihood, either the plaintiff's 18th fall back position or it's just a theme to sell the 'horrible evil' that has been done here to the public, contaminating the jury pool and if this thing goes to trial (and it might), get more cash for the plaintiff.

If I were the attorney of the insurance company, I might just take this sucker to trial on the theory that while there may have been a breach in the standard of care, she's had 9 kids she can't afford, she's lost custody of three because of a showing that she was an unfit mother, she was seeking a long-term solution to keep her from getting pregnant, the docs gave her one better than a IUD, and therefore, she has not been damaged, in fact, she came out ahead.

Yeah I was thinking battery as well. especially if they actually did do it on purpose and it wasn't a mix-up.

As for the latter argument, I think anyone would have to be careful in making such an argument because we can't have doctors taking matters into their own hands and deciding things for the patient that THEY think are better for the patient.

No, we don't know what went down, but it isn't that uncommon to have doctors perform the wrong procedure on patients. You are implying that she may have done something herself to cause it to happen, but are you thinking that because you are judging her on having 9 kids or is that what you really think may have happened? If they cannot produce a consent form that she signed for the tubal ligation that fell within the guidelines for such procedures, then yes, they were wrong.

fixed...hehehe

If you give these doctors a pat on the back, that will only make things get out of hand. Then you may start having doctors sterilize ANYONE that THEY feel is abusing the system, without knowing anything about that person. I don't understand why any intelligent human being would support that kind of thing.

It is attitudes like yours that scare me when it comes to jury trials. Too often jurors get hung up on irrelevant issues and humanistic things and disregard the actual law. The sad part is that if the lawsuit goes to trial and gets to a jury, the jury will probably do the very same thing you are doing.

People need to understand that unsympathetic plaintiffs deserve their day in court as well if they have legitimate legal issues.

That's why I went with Battery. With Battery, you get straight to punitives (without all those nasty medmal caps). With malpractice, since it's a negligence based claim, I'm pretty sure you have to prove damages to win.

I'm definitely not a medmal guy and don't (yet) do civil rights cases, although I'm planning on getting around to calling up the federal Bar's pro bono folks to do pro bono prisoner civil rights claims against the state.... so maybe in a couple years I'll revive this thread and wax eloquent on the requirements of 42 USC 1983, et. seq... but not today :)

Still though, the jury could find that a battery was committed, but only award nominal damages. That sort of thing [juries treating unsympathetic plaintiffs badly] is at the heart of our legal system. Despite being right on the law, it's still important to prove the moral righteousness of this case, and this lawyer might have a rough go of it.

At least if they find a battery was committed, that won't result in free reign for doctors to do this kind of thing. Nominal damages are better than nothing. Proves a point.

:)

Yeah, you do have to prove damages. She wouldn't likely be able to prove special damages (unless the bill for the tubal ligation was more than a bill would be for the IUD), but she could perhaps get general damages.

I bet the bill would be higher for TL than IUD since she provided the actual IUD herself...just my two cents since I have no clue about all this legal mumbo jumbo :D

Proves a point to the plaintiff's lawyer to not take cases like that again...

I don't know if I agree with that. What is the difference between this case and a case involving someone who goes in for a face lift and gets a breast reduction on her 44H's instead? I mean you could make the argument that she needed the reduction anyway for health reasons, but that's not what she asked for. The focus should really be on the fact that it appears that the procedure she requested was NOT the procedure that was performed.

If it later turns out that she asked for the ligation (which I doubt) then that would be a different story. But somehow I think if that was really the case, gag order or not, that information would have been leaked by now.

Hell, I wanna know why she brought her own IUD.

I guess I wasn't being clear.

Hypothetically, if only nominal damages are proved on the battery, the lawyer is going to lose lots of money on this case. You're a law student, so you probably don't have a lot of experience at evaluating cases based upon whether they'll help you pay your student loans or whether they'll waste many hours of your time, cost you an arm and a leg and leave you with nothing.

A lot of hospitals don't stock certain implantable devices. If she wanted a specific device implanted that they didn't have, then she would have to bring it with her. I have actually seen this happen when I've been on Plastics with patients bringing their own breast implants.

Pro bono.

Publicity.

I don't have student loans. :cool:

I'm a law student, but I do have plain common sense. It is pretty obvious when some cases are a waste of time. Others, not so much. There isn't enough information to say it is a waste of time just yet.

I'm also a law student, but I'm not going to go on a public forum and begin talking about Tort law as if I am an expert. From a legal perspective, if she didn't sign a consent form, they were wrong. From a personal perspective, people who can't take care of the children they already have and who have had parental rights already terminated should be sterilized and they should also be charged with child neglect.

Here come the flames. I am a former caseworker and counselor. I've watched women with drug addictions and parental rights terminated, who lived on the system, complain when CYS didn't give them more handouts than they already got. I've seen people play the system like a fiddle, on more than one occasion. I saw it every day.

Because this thread is based on her being sterilized, I will attempt to refrain from putting my personal opinion into the discussion regarding child rearing (it seems I already failed above). Legally, I don't even know how you could walk into an office and say, "give me surgery using this item." I know that even to get a new piercing (when I got my belly button re-pierced) I was not allowed to use an old earring that I soaked in alcohol. The tattoo/ piercing artist did not want to use items that they don't sell to cover their own butts. With malpractice being such a hot button issue, why would a Doctor be okay with that? I'm not a Doctor-so if anyone here is or is in med school, please explain.

All implants come in sterile packaging. Patients that bring their own items to the hospital must bring them in their original, unopened, sterile packaging in order to be used. That being said, patients may also bring their own medications to the hospital to take instead of using medications provided by the hospital that may charge them much more for the items.

Is this maybe a state to state law? I've never heard of such a thing, and I certainly would not have anything IMPLANTED at a hospital that didn't have it on hand and made me bring my own. Maybe it's in sterile packaging, but what if (example) the patient accidentally leaves the package in the sun? If you're going to a ob/gyn who uses IUDs frequently for their patients, why would they practice at such an establishment?

This just makes no sense to me because like als463 said, I've never even seen any of my friends be allowed to get a piercing (from ears to everything else) and "bring their own."

Am I the only one who is extremely grossed out by this story? Clicking on this thread grosses me out which is why I haven't posted. This woman just seems disgusting.

As for real topic, I feel like it has been discussed on GC before. Almost no medical procedures should be done without the patient's and/or family's consent. I see that as an issue of legality, ethics, and morality.

That's a different issue as my disgust for this woman. Ideally, she would request to be sterilized or God would randomly do that for us. But, a waste of tax payer dollars and being a horrendous parent does not open the door for involuntary sterilization. Condoning that would open the door for something that has happened to "deviants" in the past and would become an unstoppable force when those in power are able to decide who should be involuntarily sterilized.

Octomom

True and I think even before then.

I forgot to mention that bringing your own IUD is just strange and gross. I definitely don't think that makes sense. People can set doctors up for malpractice suits and all sorts of things if they bring in their own medical devices. Yikes.

She seems nasty to me as well. And the part about bringing the IUD IS disgusting as well.

I mean I get the part (now) what someone said earlier about purchasing and bringing your own devices, but it still seems like setting yourself up for 'fail' by doing so...sealed or not.

With technology, litigation, and "crazy" at the level that it is these days, I don't think people should be trusted to bring their own devices in what appears to be the original packaging.

Medications, perhaps. Devices, no.

Not even meds.

IUDs are usually inserted at doctors' offices, and I would assume that the vast majority of OB-GYNs that perform this procedure would stock these, mainly because they do them frequently. Bringing your own implantable device to a facility would be rare, but it does happen and it is legal. I think it's funny how offended people are at the concept. Would you really mishandle something that would be put inside of you?

Some of these items are very expensive to stock and expire if not used (especially IUDs that contain medications) so hospitals may not choose to stock all forms. Hospitals often don't stock all medications as well. They have "formularies" that contain medications that their pharmacy committees have negotiated prices for that save them money. They do NOT stock all drugs so if you go to a hospital and your medication is not on the formulary, you can either take a similar medication or bring your own and take it. There is no giant mall of medical implants at these hospitals so if you need something that they don't carry, it is often easier for the patient to procure the item prior to surgery. For more high priced items, like orthopaedic hardware, the sales rep actually comes to the operating room with the implants and even shows the surgeon how to use them. When any item is brought in from outside and the item has been tampered with (and it is easy to tell if they have been) they won't be used. Hospitals, obviously, have procedures set in place to assure compliance and safety, but it would be pretty hard for a patient to sue the hospital or doctor if she/he tampered with the product.

If you are doing so for the purpose of suing for malpractice.

Crazy people have done all sorts of things to set others up. Never heard of people harming themselves to accuse someone else of doing it?

(specific to thread) Considering that 3 of her kids are no longer under her care, I wouldn't trust this whack job to bring my Quarter Pounder from the counter to the booth.

(general) People may not intentionally mishandle things, but just out of ignorance not store it or handle it properly. Why should they know how to do that? They aren't medical professionals. And as DrPhil said, people will do lots of crazy things to get $$$. Finger in the Wendy's chili, anyone?

I was gonna mention the Wendy's chili finger or the instances where people have whooped their own asses to get someone else in trouble.

Yeah, but someone brings an IUD with a finger in it, and it doesn't get used. There is a big difference between having a person get a product and use it themselves and use it incorrectly and get a product and have it used by a medical professional. It is obviously not as big a deal as y'all seem to think since it does occur. The risk is no worse than prescribing a medication to a patient and have them take it incorrectly or inappropriately. Hell, nothing stops those kinds of patients from rubbing feces in their wounds if they want to claim malpractice...people aren't that crazy that often (it does happen, I do have stories, but it is REALLY rare!) There is inherent risk in the profession. Hospitals have lawyers and risk management people on staff thinking of how to avoid potential lawsuits, so the risk is pretty minimal.

Patients are educated what to do with the equipment they buy, but an IUD doesn't just come packaged on a hanger like a pair of earrings. It's in a sterile package packed inside of a packing box like you would get a new iPhone or something. It's not like getting a live animal that needs to be fed. Stick it in your closet then remember to bring it on the day of your procedure. Leaving it in the sun or in your car won't make it disentegrate.

eh...okay...we know that safety nets are only in place after there's proof of mishandling rather than suspicion of the potential for mishandling.

Box in a box or not, this concept still yucks me out, and I have a pretty high tolerance for yucky things.

Well, all medical products are inspected before use whether or not they are provided by the hospital, because even hospitals have been known to provide expired products, products with broken seals, broken implants,etc. Every item must be inspected for intact packaging, expiration dates, signs of mishandling (ie crushing, folding, evidence of breakage) before using on a patient. It must also be confirmed that the correct product is being used since many malpractice issues have centered around this issue. There is nothing new under the sun...

So, it must be confirmed that the device is absolutely positively untampered and working in the condition that it was given to the patient?

Exactly.

Not necessarily saying that her Constitutional rights are violated, but reproductive rights can = Constitutional rights (they're thought of as belonging under the right to privacy, for those who think there's a Constitutional right to privacy).

Is it weird I didn't hear about this story, even though I live about 20 minutes away from Baystate?

Agreed.

I think that a woman is entitled to have as many children as she can pay for.
And raise on what she and her HUSBAND make.

If that makes me old school, then hell yeah for the old school.