I thought my dr performed my surgery, but......

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Latest post 01-27-2010 1:29 PM by Fark999. 19 replies.
  • 01-21-2010 11:58 AM

    • Lyveno
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    I thought my dr performed my surgery, but......

    I consulted a doctor on 11/11 about a laproscopic hysterectomy. No other dr was present or participated in the consultation. I signed the consent form and had the procedure on 11/30/09. What struck me as strange at the time is the my doctor didn't visit me in the hospital the next day, but sent a woman that was identified as her "partner". I had never seen her or spoken to her before that day. I never saw my doctor again until ten days later when I started having severe abdominal pains. She ordered a CT that found that my left ureter had a blockage, and I was readmitted into the hospital through the ER that evening. The next day, in the operating room, a stent was placed to try to allow the injury to heal. At a follow-up procedure performed in the OR, the ureter was still found to be leaking and a second stent was placed. If the injury still does not heal, then a ureter reimplantation surgery will be done.

    I felt like there was something that the doctors weren't telling me, so I ordered my operative reports from the hospital. I found out that the woman who had been identified as my doctor's "partner" was a resident and was actually the one that had performed my sugery and completed the operative report. The report specifically states "this procedure was done under the direction of and in the presence of the attending doctor." My doctor added an attestation to the operative report that states, "I was present and supervised the procedure."

    I went specifically to this doctor for her expertise, and she knew that she was the 4th doctor I had consulted and the circumstances that brought me to her. At no time was I ever informed that anyone else would be performing my procedure. If she had told me that she personally would not have been doing my surgery I would not have consented to the procedure and would have searched out another physician.

    In TN, medical malpractice claims can only be filed a year from the date of injury, which gives me until 11/30/10. I know there are other things that must be done before a claim can be filed too, which further cuts down the time I have, but I am still under treatment, and at this point, I do not know if I have any permanent injuries. Even if they do the ureter reimplantation, I still could experience kidney failure due to the reflux of urine into the kidney. What should I do? I have been damaged in so many ways--physically, emotionally, financially--caused by these physicians and they will get off scot-free, and I will still have to pay the hospital bills!

    Any thoughts, recommendations?

  • 01-21-2010 12:08 PM In reply to

    • Kivi
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    Re: I thought my dr performed my surgery, but......

    I don't think that this particular scenario actually qualifies as malpractice.

    You probably signed some consent forms for the procedure. Hopefu... you have a copies.  If so, I suggest that you read them. If you don't have copies, get them from the physician's office.  You may discover that these forms advised you that a resident might, in fact, do the procedure. 

    If you signed them, I doubt that you will have any kind of viable case on that basis. 

  • 01-21-2010 12:58 PM In reply to

    Re: I thought my dr performed my surgery, but......

    Malpractice has nothing to do with who performed the procedure.

    Unless the consent form ONLY authorized the procedure be performed by a specific doctor I do not see that who did the surgery is an issue.

  • 01-21-2010 1:13 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

    I was not given copies of the consent forms, but I have requested copies. Even if the form advised that a resident "might" do the procedure, shouldn't I have been advised of that before the procedure actually took place? Does the doctor have an obligation to inform me of who will be doing what to my body? I never even met this person or had an opportunity to ask how many procedures she had done or anything. I didn't meet her until after the surgery had taken place, and then she was still never identified as the one who had operated on me.

    I think there is a huge issue with "might"-- It means that it could or could not happen. If it was, I should have been given that information before the procedure. I "might" have cancelled the procedure as a result of that information. I should have been given the opportunity to make that decision being fully informed about who was doing what.

  • 01-21-2010 1:18 PM In reply to

    Re: I thought my dr performed my surgery, but......

    I appreciate that is how you feel but that is not what the law requires.

  • 01-21-2010 1:39 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

    Who was doing the surgery was a big deal to me!

    The problem is that I went specifically to that dr for her surgical expertise. I wanted the best, because I wanted to reduce the chances of something like this happening. I had already gone to an out of town specialist who cancelled my surgery on me because of an equipment recall. They said did not have experience using the replacement control and felt it would be dangerous for them to proceed. About 30 mins later they called me back wanting to do the procedure now because a company representative would be present. I declined because I didn't want to be a guinea pig.

    Like I said in my previous post, I am getting the consent forms to review exactly what I agreed to since I was not given copies, (I believe they were signed on the day of surgery) but I still think that I should have been told who was doing what. She should have been brought in and identified as the one who would be performing my surgery. Even while I was in the hospital, my doctor came into the room and apologized but still did not tell me that someone else had done the surgery.

    I don't believe that getting a consent form that says "might" precludes physicians from informing their patients about who will actually perform the procedure before it happens.

     

  • 01-21-2010 1:42 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

    But doesn't the law require informed consent? How could I have given informed consent without having all pertinent information? "Might" means it could or it could not...shouldn't I have been told what would happen in my particular instance?

     

  • 01-21-2010 1:51 PM In reply to

    Re: I thought my dr performed my surgery, but......

    It would have been nice. But you were told what might happen and you agreed to that.

  • 01-21-2010 1:56 PM In reply to

    Re: I thought my dr performed my surgery, but......

    "I don't believe that getting a consent form that says "might" precludes physicians from informing their patients about who will actually perform the procedure before it happens. "

    You are free to believe that - even if your belief is wrong.

  • 01-21-2010 2:04 PM In reply to

    Re: I thought my dr performed my surgery, but......

    It appears that you had your surgery at an academic medical center.  While medical malpractice law does not specifically require that your doctor inform you that a resident might participate in the procedure the hospital policy does as well as state law typically.  It is not considered ethical for a resident to identify themselves as a full "partner" and give you the impression that they are a fully licensed practicing physician instead of someone who is on a provisional license and still in training. 

    You need to consult a med/mal attorney ASAP.  While I cannot say that negligence occured one thing that a competent med/mal attorney will review is who was present in the OR and WHEN.  If your physician left this resident to perform the procedure and showed up when they were "closing" and signed off on it there is a HUGE problem with that.  You cannot bring a case against the resident as they are operating under the scope of practice of the attending doctor. You can at very minimum bring an ethics charge against the attending for not informing you under the "informed consent" practice that they would be using a resident for greater than 50% of the procedure.  The patient has an absolute right to indicate that no medical students, residents or anyone other than the consulting physician do their procedure.  You also have a right to know that the physician you are dealing with is a resident or not. 

    At the very least a complaint needs to be made to the hospital and the state licensing board about the unethical practice of not informing you that the "partner" was a resident. 

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 01-21-2010 11:03 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

    Actually, I was not told what "might" happen--the doctor never discussed that with me prior to the surgery. In fact, I didn't even sign the consent form until the nurse brought it in to me when I was in surgical prep. I was never given a copy of what I signed, so I can't say with certainty what I agreed to. That is why I have requested to get all consent to treat forms that I signed to see what was actually on it.

    My previous statements about "might" were based upon if the form did have something like that. Personally, as tight-lipped as they were about who performed the surgery and the resident being introduced to me as a partner, I'm not so sure that they did.

     

  • 01-21-2010 11:28 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

     

    I've talked to three med/mal attorneys. The first (a large firm) told me first to get copies of my consent forms and then he would tell me what to do next. The second (a large firm) said that they weren't saying that I didn't have a case, but they couldn't take it. The last atty, (a sole atty) was one with whom I have had dealings in the past but only realized today that he does med/mal cases. I was able to talk at length with him about the entire situation, with additional details that I have not disclosed here for brevity's sake. Once I have all of my paperwork together, he is going to review the case and we are going to see what happens at my appointment with the urologist. The attorney said that at that time we can make the decision if my case is worth pursuing, mainly because of the expense of these type of cases compared to the potential recovery. I just found out today I go back to the urologist on March 1st. If the ureter is still found to be leaking, then the doctor is going to do the reimplantation surgery that day while I am still in the operating room.

    If I am unable to pursue any legal remedies, I had already decided that I would go to our local news, my local state representatives, and to the hospital itself. I didn't think about filing an ethics complaint.

    Thank you for that suggestion.

  • 01-22-2010 6:47 AM In reply to

    Re: I thought my dr performed my surgery, but......

    "I had already decided that I would go to our local news, my local state representatives, and to the hospital itself."

    I can save you some time.  The news media might be interested, your state representatives won't, and the only way the hospital will take you seriously is if you file a lawsuit or a complaint with the state board that licenses hospitals. If the media has nothing else going on they might pursue it.  Your state representative at best will refer you to the licensing boards and at worst will give you a "canned" response.  They have too many other things going on with the economy.  If you send the hospital a personal written complaint they too will give you a "canned" pat on the head response to make you go away.  Hospitals listen to lawyers and licensing boards.  Despite any touchy feelie ads you see saying how they care about their patients.

    If a lawsuit is not possible THEN that is when you pursue the charges with the licensing boards for the attending doctor and the hospital.  DO NOT do this until your attorney tells you that the case can't be pursued.  If you do this while a case is in motion you could jeopardize it. 

    Best of luck with the surgery.  I hope you recover.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 01-24-2010 3:34 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

     

    LynnM:
    "I don't believe that getting a consent form that says "might" precludes physicians from informing their patients about who will actually perform the procedure before it happens. " You are free to believe that - even if your belief is wrong.

     

    The American Medical Association states the following on its website regarding informed consent:

    Informed consent is more than simply getting a patient to sign a written consent form. It is a process of communication between a patient and physician that results in the patient's authorization or agreement to undergo a specific medical intervention.

    In the communications process, you, as the physician providing or performing the treatment and/or procedure (not a delegated representative), should disclose and discuss with your patient:

    • The patient's diagnosis, if known;
    • The nature and purpose of a proposed treatment or procedure;
    • The risks and benefits of a proposed treatment or procedure;
    • Alternatives (regardless of their cost or the extent to which the treatment options are covered by health insurance);
    • The risks and benefits of the alternative treatment or procedure; and
    • The risks and benefits of not receiving or undergoing a treatment or procedure.

    In turn, your patient should have an opportunity to ask questions to elicit a better understanding of the treatment or procedure, so that he or she can make an informed decision to proceed or to refuse a particular course of medical intervention.

    This communications process, or a variation thereof, is both an ethical obligation and a legal requirement spelled out in statutes and case law in all 50 states." (italics mine)

    This information, taken directly from the Association of which every physician is a member, would appear to support my "belief".

    There is a distinct difference between medical students participating, or sharing, in the care of a patient and a resident, who only has a provisional license to practice medicine, actually performing a procedure--even if it is "under the direction of and in the prescence of the attending physician". Whether the doctor is actually performing the procedure, or merely supervising it, is very important information. A patient should be provided this information and have been able to ask questions about the qualifications of the resident that would be performing the procedure, or at the very least, have the opportunity to meet them prior to the prodecure. This information would definitely influence the decision of the patient to undergo a specific procedure.

    http://www.ama-assn.or...

  • 01-24-2010 3:44 PM In reply to

    • Lyveno
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    Re: I thought my dr performed my surgery, but......

    ClydesMom,

    I have read several of your posts and you seem to be very knowledgeable and if you are an attorney, I am sure that you are a darn good one. Thank you so much for your advice--I do not want to do anything that could jeopardize my case, if I have one. Can you please provide your thoughts on the informed consent information that I posted from the AMA?

    Thank you for your well wishes.

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