Originally Posted by Kevin
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.
|
Threaded Mode
