According to court documents, a Lexington doctor fertilized a woman’s eggs with his own sperm, although she did not consent to this procedure.
A Kentucky woman said she visited a fertility specialist in 1988. The doctor claimed that the sperm donor was a 24-year-old medical student with “Nordic features.” Her baby, who was born the following year, had no such features and, in fact, resembled the doctor. A subsequent DNA test established the doctor’s paternity “beyond any reasonable doubt,” according to the lawsuit.
The doctor has not commented on the matter and his former employer distanced itself from the situation. “The Hospital terminated the contract based on [the doctor’s] failure to abide by the terms of the contract in addition to the policies and procedures of the Hospital. If the allegations in this complaint are determined to be true, [we] had no knowledge of such conduct, nor would the hospital have sanctioned them,” it said in a statement.
Effective consent is an important part of a doctor’s duty of care. As outlined below, this duty is very high. As a result, it’s easier to prove negligence, or a lack of care, in these situations.
There are basically two areas of concern regarding surgical consent. First, the doctor must warn the patient about all known risks. Second, the doctor must perform the procedure exactly as outlined in the consent.
Individual risks are usually an issue. Many people have pre-existing conditions which significantly increase certain risks. So, in most cases, a doctor cannot simply give a patient a boilerplate consent. Instead, the consent should be tailored to the patient, so patients know exactly what they are consenting to.
Enforceability is the biggest medical malpractice issue with informed consent. If the patient is inapacitated, the patient cannot consent. The I-word is not very well-defined in Kentucky. It could mean anything from completely unconscious to slightly disoriented, like the disorientation commonly associated with a head injury.
Furthermore, many surgical consents are not enforceable contracts. Instead, they are take-it-or-leave-it contracts of adhesion. Patients have absolutely no bargaining power and they must sign the form to have the surgery. So, unless the consent has an enforceability clause, it might not hold up in court.
The responsibility to perform the surgery as outlined in the consent seems straightforward. However, doctors often try to change their approaches once the surgery begins. If they see a shortcut, they usually take it, regardless of what the consent authorizes. To them, the ends justify the means. But once again, that attitude doesn’t always hold up in court.
Operating outside the scope of the consent is usually battery. Essentially, a battery is an unconsented harmful or offensive touch. So, even if the procedure is successful, like the test tube baby in the above case, the unconsented touch could be offensive and therefore actionable in court.
Duty of Care
Effective consent is part of a doctor’s fiduciary duty. This duty requires doctors to set aside all other interests, including the amount of time they spend explaining a procedure to a patient, and concentrate solely on the patient’s welfare.
In contrast, most people, such as vehicle operators, usually have a duty of reasonable care. They must obey the rules of the road and drive defensively. So, what might be an excusable mistake for a vehicle operator is actionable negligence against a doctor.
Medical misdiagnosis is another example. Statistically, doctors misdiagnose about 20 percent of cancer, heart disease, and other serious chronic conditions. In high school, an 80 percent success rate is a passing grade. It might even be high enough to make an honor role. But in the medical malpractice context, because of the aforementioned high duty of care, an 80 percent success rate isn’t high enough.
Obtaining maximum compensation in a medical negligence case is basically a two-step process.
First, a Lexington personal injury attorney must establish the standard of care. In some areas, like surgical consent, the standard of care is quite clear. But in other areas, the standard of care is more difficult to determine. For example, the standard might be higher in a large hospital with vast resources than in a small rural clinic.
Next, an attorney must prove, by a preponderance of the evidence, that the doctor’s care fell below that standard. Although the duty of care is high, an unsatisfactory result doesn’t necessarily mean the doctor was negligent. Additional proof might be required.
Damages in a medical malpractice claim usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are available as well, if there is clear and convincing evidence that the doctor intentionally disregarded a known risk.
Injury victims are usually entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Virtual, home, and hospital visits are available. #goodelawyers