By: Stephanie Franco Holtzlander
BleekeDillonCrandall
Does your Consent Form sufficiently notify your patient that her physician is an independent contractor?
If not, your hospital or nursing home could be held liable for services provided by physicians who are independent contractors.
The Court of Appeals of Indiana issued an opinion on October 25, 2011, Plank v. Community Hospitals of Indiana, et al, finding that the defendant hospital’s Consent Form did not adequately clarify the legal relationship between the hospital and the physicians furnishing services to the plaintiff patient. Finding that the language of the consent form gave the patient “no way to know which of the physicians who provided services to her were independent contractors and, specifically, whether the radiologist who provided services to her was one of the many,” the Court held that the form was ambiguous. Thus, there was no evidence the patient was provided "meaningful written notice" that her radiologist was an independent contractor---and the radiologist was, therefore, deemed to be an agent or employee of the hospital.
So, what is “meaningful written notice?” Some courts have found that a hospital will avoid liability for a contractor physician’s malpractice by providing meaningful written notice to the patient which is acknowledged at the time of admission. In Georgia this can take the form of conspicuous signs posted in a hospital’s registration area, along with express language in the patient consent to treatment form, See Cantrell v. Northeast Georgia Med. Ctr., 235 Ga.App. 365, 508 S.E.2d 716, 719-720 (1998). In Texas, written notice signed by the patient is sufficient to release a hospital from liability for a contractor physician’s malpractice. See Valdez v. Pasadena Healthcare Management Inc., 975 S.W.2d 43, 48 (Tex.App. 1998)
The Plank decision confirms that in Indiana as well, a hospital can avoid liability for a contractor physician’s malpractice by providing the patient “meaningful written notice” of the nature of its relationship with the physician. However, what constitutes “meaningful” is less clear. Plank suggests that specificity regarding which physicians are independent contractors is necessary to avoid fatal ambiguity. Specific written acknowledgment by the patient is also likely to carry significant weight.
BleekeDillonCrandall Attorneys will be following this decision and will continue to keep you updated. For now, hospitals and nursing homes should take this opportunity to review Consent Forms and make any changes deemed necessary. Please contact Stephanie Holtzlander for any further questions.
Thursday, October 27, 2011
Monday, October 24, 2011
Indiana Ophthalmologist Wins Jury Trial; Plaintiff Takes Nothing
By: Stephanie Franco Holtzlander
BleekeDillonCrandall Attorneys
Case Summary:
In November of 2001, a 74-year-old woman was suffering from cataracts. She scheduled cataract surgery at a Hospital in northern Indiana with an Ophthalmologist. The surgery was performed in November of 2001 and Ophthalmologist planned to include the insertion of a “posterior intraocular implant.” During the procedure, however, the Ophthalmologist encountered complications which prompted her to switch to an “anterior lens implant” instead.
Use of an “anterior lens implant” comes with some risk, among those risks are the possibility of increased pressure within the eye and damage to the optic nerve. In order to avoid this risk when implanting anterior lenses, it was suggested at trial that routine practice is for the Ophthalmologist to also perform iridectomies, which is the removal of a small portion of the iris. Ophthalmologist in this case did not perform an iridectomy.
Patient’s condition did not improve following surgery so she sought a second opinion from an ophthalmologist in her area. She then learned that she had elevated pressure in her right eye. With this knowledge, Patient underwent emergency Yag laser iridectomy in February of 2002. She was then referred to a cornea specialist who performed further surgery in May of 2002. Despite these repair surgeries, Patient claims to have resulting permanent damage to her right eye.
Patient brought a lawsuit pursuant to the Indiana Medical Malpractice Act and the case was submitted to a Medical Review Panel comprised of three ophthalmologists. Patient argued that the performance of an iridectomy is not simply customary when implanting an anterior lens, it is actually required by the standard of care. Patient maintained that Ophthalmologist’s failure to perform the procedure was a breach in the standard of care and caused permanent eye damage. The Medical Review Panel agreed and rendered an unanimous opinion against Ophthalmologist. Patient pursued her claim in state court.
This case was tried by a jury in Lake County Superior Court. Ophthalmologist argued that Patient’s outcome was related to her failure to follow doctor’s orders and pointed to Patient’s pre-existing conditions and failures by Patient’s subsequent doctors to recognize problems. Ophthalmologist relied on evidence from several ophthalmology experts. After three days of testimony, the jury returned a verdict in favor of Ophthalmologist with the Patient taking nothing by way of the verdict.
Analysis:
This case offers an excellent example of how a physician can prevail in a jury trial despite a unanimously unfavorable Medical Review Panel Opinion. Litigation, like other competitions, generally rewards the party that is the most prepared and has gathered the strongest resources. Working with medical malpractice defense counsel who are experienced and savvy in your field of medical expertise is essential to successfully litigating a medical negligence case in front of a jury. Assembling credible and highly qualified expert witnesses in cases involving medical questions that are controversial or where a question of proper technique exists, is very persuasive. In this case, Ophthalmologist’s use of experts carried the day.
For more information about this case or the BleekeDillonCrandall medical negligence defense team, please contact Stephanie Holtzlander at Stephanie@bleekedilloncrandall.com.
BleekeDillonCrandall Attorneys
Case Summary:
In November of 2001, a 74-year-old woman was suffering from cataracts. She scheduled cataract surgery at a Hospital in northern Indiana with an Ophthalmologist. The surgery was performed in November of 2001 and Ophthalmologist planned to include the insertion of a “posterior intraocular implant.” During the procedure, however, the Ophthalmologist encountered complications which prompted her to switch to an “anterior lens implant” instead.
Use of an “anterior lens implant” comes with some risk, among those risks are the possibility of increased pressure within the eye and damage to the optic nerve. In order to avoid this risk when implanting anterior lenses, it was suggested at trial that routine practice is for the Ophthalmologist to also perform iridectomies, which is the removal of a small portion of the iris. Ophthalmologist in this case did not perform an iridectomy.
Patient’s condition did not improve following surgery so she sought a second opinion from an ophthalmologist in her area. She then learned that she had elevated pressure in her right eye. With this knowledge, Patient underwent emergency Yag laser iridectomy in February of 2002. She was then referred to a cornea specialist who performed further surgery in May of 2002. Despite these repair surgeries, Patient claims to have resulting permanent damage to her right eye.
Patient brought a lawsuit pursuant to the Indiana Medical Malpractice Act and the case was submitted to a Medical Review Panel comprised of three ophthalmologists. Patient argued that the performance of an iridectomy is not simply customary when implanting an anterior lens, it is actually required by the standard of care. Patient maintained that Ophthalmologist’s failure to perform the procedure was a breach in the standard of care and caused permanent eye damage. The Medical Review Panel agreed and rendered an unanimous opinion against Ophthalmologist. Patient pursued her claim in state court.
This case was tried by a jury in Lake County Superior Court. Ophthalmologist argued that Patient’s outcome was related to her failure to follow doctor’s orders and pointed to Patient’s pre-existing conditions and failures by Patient’s subsequent doctors to recognize problems. Ophthalmologist relied on evidence from several ophthalmology experts. After three days of testimony, the jury returned a verdict in favor of Ophthalmologist with the Patient taking nothing by way of the verdict.
Analysis:
This case offers an excellent example of how a physician can prevail in a jury trial despite a unanimously unfavorable Medical Review Panel Opinion. Litigation, like other competitions, generally rewards the party that is the most prepared and has gathered the strongest resources. Working with medical malpractice defense counsel who are experienced and savvy in your field of medical expertise is essential to successfully litigating a medical negligence case in front of a jury. Assembling credible and highly qualified expert witnesses in cases involving medical questions that are controversial or where a question of proper technique exists, is very persuasive. In this case, Ophthalmologist’s use of experts carried the day.
For more information about this case or the BleekeDillonCrandall medical negligence defense team, please contact Stephanie Holtzlander at Stephanie@bleekedilloncrandall.com.
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