Hospital needed informed consent on penis removal
Posted: Fri May 17, 2002 10:58 pm
Hospital needed informed consent on penis removal
Pasted from http://www.ama-assn.org/sci-pubs/amnews ... ca0211.htm
In the Courts. Feb. 11, 2002.
After a patient was awarded $2,599,832.52 in damages for negligent medical care that ultimately led to an amputated penis, both the patient and the two doctors found liable appealed the decision. The two doctors reached a post-verdict settlement with the patient. At issue in the present case is whether the trial court's jury instruction with respect to the hospital's liability was in error.
William Rogers began receiving treatment at the T.J. Samson Community Hospital in Glasgow, Ky., in March 1997 for an abscess in his left groin. During a March 16, 1997, surgical procedure to drain the abscess, several areas of necrotic tissue were found and dead material was debrided. The patient was prescribed antibiotics. A sample of the removed tissue was cultured and tested for sensitivities to antibiotics. The hospital reported that one source of the infection, group B streptococcus, was sensitive to ciprofloxacin.
Following the sensitivity report, Rogers' treatment with the prior antibiotics ended, and he was placed on ciprofloxacin beginning on or about March 18. A second operation was performed on March 19 to debride necrotic tissue from Rogers' groin. At this time, Rogers was diagnosed with a form of necrotizing fasciitis known as Fournier's gangrene. Additional blood work, chest x-rays and a glucose tolerance test were ordered.
Rogers was discharged from the hospital on March 25, but returned four days later seeking treatment for continued drainage and irritation in the groin area. The affected areas were cleaned. This procedure was repeated on two subsequent emergency department visits.
On April 12, 10 days after his last visit, the patient went to the emergency department complaining that his penis had "swollen to the size of a 12-oz. Coca-Cola can."
The physician then in charge of his care prescribed a different antibiotic and over a period of a week repeatedly debrided necrotic tissue from Rogers' penis, ultimately removing the entire organ. All of the tissue debrided in these procedures was discarded rather than sent to the hospital's laboratory for testing.
Before each of the debridements that occurred during this time, the patient signed a consent form. Although each form mentioned "debridement" and two specifically mentioned debridement of the penis, none of the consent forms explicitly stated that Rogers would lose his entire penis. Rogers alleged that he did not understand that his penis was being gradually removed in its entirety because he was in a near constant state of sedation during this time. By June 1997, Rogers had been cured of his infection, but he had lost his penis and left testicle. Each of Rogers' surgeries took place at the hospital, as did all of the laboratory tests on his tissue. While the two physicians involved were not employees of the hospital, hospital nurses treated Rogers and discussed the consent forms with him before each procedure.
Rogers sued his doctors and the hospital in the U.S. District Court for the Western District of Kentucky for negligent medical treatment and negligent failure to obtain his informed consent for the amputation. At the trial, Rogers alleged that his infection progressed to his penis and required its amputation because the first treating physician prescribed an antibiotic proven ineffective in treating the type of infection he had. Furthermore, he alleged that if the tissue that was debrided from his groin and penis after April 12 had been tested microbiologically, the tests might have shown that the infection was still active at that time. According to Rogers, the hospital was negligent in failing to make clear in its March 16 sensitivity report the fact that although group B streptococcus might be sensitive to ciprofloxacin, such sensitivity does not mean that the infection is treatable by ciprofloxacin.
Rogers further argued that the lack of laboratory tests on tissue debrided on April 12 and later was thus missing evidence that prevented him from proving an essential element of his case against the hospital.
The trial judge instructed the jury that certain missing evidence could be presumed to be adverse to the doctors, but the judge did not include the hospital in the missing evidence instruction. Likewise, the judge instructed the jury that the doctors had a duty to ensure that Rogers gave his informed consent for the amputation, but did not include the hospital in that instruction.
On appeal, the 6th U.S. Circuit Court of Appeals ruled that it was wrong for the trial judge to exclude the hospital from his instructions regarding the missing evidence as well as informed consent.
The court held that "sufficient evidence exists to permit the jury to determine the factual predicate of whether the hospital had a duty to test the tissue." The court also said the hospital "had a statutory duty to secure Rogers' informed consent for the removal of his entire penis." The fact that doctors involved were not employees does not absolve the hospital of its duty. The court ruled that under Kentucky law all health care providers, in this case nurses employed by the hospital, have a duty to secure the patient's informed consent. Accordingly, the appeals court overturned the jury verdict with respect to the hospital and sent the case against the hospital back for a new trial.
Pasted from http://www.ama-assn.org/sci-pubs/amnews ... ca0211.htm
In the Courts. Feb. 11, 2002.
After a patient was awarded $2,599,832.52 in damages for negligent medical care that ultimately led to an amputated penis, both the patient and the two doctors found liable appealed the decision. The two doctors reached a post-verdict settlement with the patient. At issue in the present case is whether the trial court's jury instruction with respect to the hospital's liability was in error.
William Rogers began receiving treatment at the T.J. Samson Community Hospital in Glasgow, Ky., in March 1997 for an abscess in his left groin. During a March 16, 1997, surgical procedure to drain the abscess, several areas of necrotic tissue were found and dead material was debrided. The patient was prescribed antibiotics. A sample of the removed tissue was cultured and tested for sensitivities to antibiotics. The hospital reported that one source of the infection, group B streptococcus, was sensitive to ciprofloxacin.
Following the sensitivity report, Rogers' treatment with the prior antibiotics ended, and he was placed on ciprofloxacin beginning on or about March 18. A second operation was performed on March 19 to debride necrotic tissue from Rogers' groin. At this time, Rogers was diagnosed with a form of necrotizing fasciitis known as Fournier's gangrene. Additional blood work, chest x-rays and a glucose tolerance test were ordered.
Rogers was discharged from the hospital on March 25, but returned four days later seeking treatment for continued drainage and irritation in the groin area. The affected areas were cleaned. This procedure was repeated on two subsequent emergency department visits.
On April 12, 10 days after his last visit, the patient went to the emergency department complaining that his penis had "swollen to the size of a 12-oz. Coca-Cola can."
The physician then in charge of his care prescribed a different antibiotic and over a period of a week repeatedly debrided necrotic tissue from Rogers' penis, ultimately removing the entire organ. All of the tissue debrided in these procedures was discarded rather than sent to the hospital's laboratory for testing.
Before each of the debridements that occurred during this time, the patient signed a consent form. Although each form mentioned "debridement" and two specifically mentioned debridement of the penis, none of the consent forms explicitly stated that Rogers would lose his entire penis. Rogers alleged that he did not understand that his penis was being gradually removed in its entirety because he was in a near constant state of sedation during this time. By June 1997, Rogers had been cured of his infection, but he had lost his penis and left testicle. Each of Rogers' surgeries took place at the hospital, as did all of the laboratory tests on his tissue. While the two physicians involved were not employees of the hospital, hospital nurses treated Rogers and discussed the consent forms with him before each procedure.
Rogers sued his doctors and the hospital in the U.S. District Court for the Western District of Kentucky for negligent medical treatment and negligent failure to obtain his informed consent for the amputation. At the trial, Rogers alleged that his infection progressed to his penis and required its amputation because the first treating physician prescribed an antibiotic proven ineffective in treating the type of infection he had. Furthermore, he alleged that if the tissue that was debrided from his groin and penis after April 12 had been tested microbiologically, the tests might have shown that the infection was still active at that time. According to Rogers, the hospital was negligent in failing to make clear in its March 16 sensitivity report the fact that although group B streptococcus might be sensitive to ciprofloxacin, such sensitivity does not mean that the infection is treatable by ciprofloxacin.
Rogers further argued that the lack of laboratory tests on tissue debrided on April 12 and later was thus missing evidence that prevented him from proving an essential element of his case against the hospital.
The trial judge instructed the jury that certain missing evidence could be presumed to be adverse to the doctors, but the judge did not include the hospital in the missing evidence instruction. Likewise, the judge instructed the jury that the doctors had a duty to ensure that Rogers gave his informed consent for the amputation, but did not include the hospital in that instruction.
On appeal, the 6th U.S. Circuit Court of Appeals ruled that it was wrong for the trial judge to exclude the hospital from his instructions regarding the missing evidence as well as informed consent.
The court held that "sufficient evidence exists to permit the jury to determine the factual predicate of whether the hospital had a duty to test the tissue." The court also said the hospital "had a statutory duty to secure Rogers' informed consent for the removal of his entire penis." The fact that doctors involved were not employees does not absolve the hospital of its duty. The court ruled that under Kentucky law all health care providers, in this case nurses employed by the hospital, have a duty to secure the patient's informed consent. Accordingly, the appeals court overturned the jury verdict with respect to the hospital and sent the case against the hospital back for a new trial.