Woman claims "I was sterlized against my will!" after having 9 children...

[deepimpact2]

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.

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.

[DaemonSeid]

Originally Posted by deepimpact2

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 taxpayers.

fixed...hehehe

[Kevin]

Originally Posted by deepimpact2

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.

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

[deepimpact2]

Originally Posted by Kevin

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

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.

[AOII Angel]

Originally Posted by deepimpact2

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

[DaemonSeid]

Originally Posted by AOII Angel

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

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

[AOII Angel]

Originally Posted by DaemonSeid

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

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.

[33girl]

Originally Posted by AOII Angel

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.

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."