News: In 2014, a pregnant patient received obstetric services for her third child. The patient claimed she requested and paid for a tubal ligation; however, the ligation was never performed, and the patient was not informed. The patient became pregnant again and alleged the care providers’ failure to perform the procedure constituted negligence and caused the unwanted pregnancy. The defendants denied liability.
A trial court ruled in favor of the defendants, but the appellate court determined the patient presented sufficient evidence to demonstrate the defendants’ duty, breach, and the existence of damages.
Background: From April 2014 until July 2014, a pregnant patient received obstetric services from an individual physician and a medical center. The patient did not meet or speak with the physician until she was admitted to the hospital for a scheduled cesarean delivery — the patient’s third. The patient did not tell the physician she wanted him to perform a tubal ligation, and the physician did not inform the patient he would perform the procedure. The physician testified he does not perform such procedures by default, and that patients must request the procedure.
The patient received federally funded health insurance that does not cover the cost of surgical sterilization. The patient knew she had to pay $400 before the physician would perform a tubal ligation. Before the scheduled cesarean delivery, the patient paid the $400 and received a receipt, although it did not indicate the reason for the charge.
According to the patient, when she arrived at the hospital the next day, she told staff she was going to have her tubes tied. However, the patient did not receive any counseling from the physician about tubal ligation, and the records did not reveal any informed consent signed by the patient granting permission for the procedure. The physician did not discuss the procedure.
The medical center requires patients seeking a tubal ligation to sign a “Requirements for Sterilization” form that advises the patient about the risks of the procedure, including the risk of death, and informs patients even if a portion of the tube is removed, an unplanned and undesired pregnancy still may occur. This patient did not sign this form.
The patient underwent the cesarean delivery but not tubal ligation. During a postnatal visit, the medical practice’s records indicated the patient was requesting tubal ligation as a contraceptive method.
Approximately one year later, the patient became pregnant with her fourth child and returned to the same practice, which confirmed the physician did not perform the tubal ligation. The practice refunded the patient the $400. The patient gave birth to her fourth child. Although the physician who delivered that child recommended a tubal ligation, the patient did not request and did not undergo the procedure.
One or two months following the patient’s delivery of her fourth child, she again became pregnant, but that child did not survive to term. The patient did not discuss tubal ligation with the physician who provided services during the patient’s most recent pregnancy.
The patient filed a lawsuit against the physician and practice, claiming her fourth pregnancy resulted from malpractice and a failure of the healthcare providers to inform her the tubal ligation was not performed. The defendants denied liability and filed a motion for summary judgment. The trial court granted the defendants’ motion, but the appellate court reversed, finding the patient presented some evidence of a duty by the healthcare providers and a breach of that duty. The appellate court also found sufficient damages for mental anguish if medical negligence was proven.
What this means to you: This case presents lessons about consent, notice, and records issues as well as interesting aspects of damages for this rather unique malpractice action. A more typical medical malpractice action is focused on informed consent: whether a care provider fully informed a patient about the nature, benefits, and risks of the procedure, and allowed the patient an opportunity to ask questions. Failure to provide this information and to secure a patient’s knowing, informed consent is a common form of malpractice.
By contrast, this case is a twist on consent and notice whereby the patient wanted a procedure, requested it, paid for it, and believed she received it. The lack of information did not occur before the procedure — it occurred after, whereby the patient was never informed that she did not undergo the procedure. This patient claimed these circumstances constituted malpractice because the physician and practice actually took her money but did not perform the procedure — and, more importantly, did not fully inform her.
Transparency in healthcare is fundamental and critical. Patients must be informed at all reasonable times of their medical treatment options, risks and benefits, and what actually happens. Of course, there are certain circumstances in which it is impossible to fully inform and receive a patient’s consent before providing emergency care. But in the absence of that, securing a patient’s full informed consent before and fully informing a patient after are standard duties for care providers. Here, the appellate court agreed the patient sufficiently presented evidence indicating the physician breached the duty of care. The court found the care providers knew or should have known the patient requested the procedure but did not receive it.
Notably, an increasing number of cases are emerging where larger healthcare facilities, clinics, and hospital systems servicing multiple areas have failed to create systems that allow open communication between departments, sub-departments, and staff. Here, when the patient first requested the procedure, the individual receiving the request should have informed the surgeon so the procedure could be added to the informed consent. The admitting department, where the money was paid, did not send the authorization with the patient as part of her medical record. This form must be reviewed and signed by the patient in the presence of the surgeon before anything can happen. If this surgeon does not perform sterilizations, the staff should have communicated this to the admitting department so the patient would be notified when the request for the form was generated. That way, she could have chosen a different practitioner or a different hospital to receive the care she wanted. Finally, before she was taken into the operating room, a nurse and an anesthesiologist should have asked the patient what procedure they are undergoing and match the answers to the various consent forms. Had this occurred, the surgery might have been postponed. If not feasible, at the very least, the patient would have known she was not going to receive the tubal ligation during her cesarean delivery. While this may seem like a complex maze to navigate, these steps are essential to assure a complete understanding by all involved of what is about to take place.
Related to these issues of consent and notice, an important lesson of preparing, reviewing, and keeping records emerges. Medical malpractice actions take many years, particularly when appeals are involved. Memories fade, but medical records are eternal. Demonstrating a patient was actually fully informed of the risks and benefits of a certain course of treatment without accurate medical records is an uphill, if not impossible, battle. Care providers must ensure proper policies and procedures are in place, and all staff prepare thorough records, review those records for accuracy, and maintain those records for later use, whether for the underlying healthcare of the patient or in defending against malpractice actions. Here, the records accurately indicated the patient did not receive the ligation, yet it was unexplained how the care provider accepted and kept records of the patient’s payment toward the procedure. Oversight and review of such records could have revealed this discrepancy and allowed the care provider to shed light on it before unwanted consequences occurred.
Finally, there are interesting takeaways concerning damages. The court found the parents of a healthy child born after an unsuccessful (or unperformed) sterilization may not recover monetary damages for the care, education, maintenance, and support of that healthy child. The parents may recover actual medical expenses incurred because of the procedure — which, in this case, was the mere $400 out-of-pocket expense. The care provider had reimbursed the patient this amount, thus undermining the damages. At the same time, the court recognized mental anguish damages tied to the unwanted pregnancy and birth were a prospective measure of damages if the patient could adequately prove the care providers’ negligence. That enables actual, significant damages in the event of liability. When the appellate court determined triable issues existed, the court opened up these damages, and the patient may be able to recover far more than $400. Thus, it is important for defendant care providers to challenge not only liability, but the proper measure of damages to mitigate risk. For example, a patient who suffers only nominal harm will be entitled to far less recovery than a patient who suffered an unwanted pregnancy and gave birth to an unhealthy or disabled child, necessitating significant costs for care. Reviewing and challenging the alleged damages or harm is critically important for defendants.
REFERENCE
- Decided April 8, 2022, in the Court of Appeals, Eighth District of Texas, Case Number 08-19-00287-CV.
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