Not One Ovary but Both Removed

In Illinois, a 36-year-old woman underwent a bilateral salpingo-oophorectomy, performed by the defendant gynecologist.

The plaintiff claimed that the defendant removed both of her ovaries although she had consented to the removal of only the left ovary. The plaintiff also claimed that her colon was perforated during the surgery, necessitating multiple subsequent hospitalizations.

Outcome
According to a published report, a $1.2 million verdict was returned against both defendants (the gynecologist and the medical facility where the surgery took place).

Comment

Setting aside the issue of the bowel damage for a moment, it is important to consider the matter of patient consent for medical procedures.

A patient who has not given consent for a procedure can recover for damages under the tort of battery, whether or not harm was suffered—even if the procedure was helpful.

Tortious battery is an offensive contact occurring without a person’s consent. The question of “offensiveness” is decided by an objective “reasonable person standard.” In the classic example, a person bumped by other passengers on a crowded subway cannot recover for battery because a reasonable person expects this type of contact on crowded subways. Yet a person groped on that same subway has a case of battery because a reasonable person does not expect this contact, as it is offensive.

Here, the patient presumably consented to a unilateral, not a bilateral, oophorectomy. In any instance where the patient has given consent for surgery, it is important to not exceed the scope of that consent. However, the extent of surgery will commonly depend on intraoperative findings, with decisions often made on the spot. In such cases, the possibility of the contingent procedure must be addressed in the surgical consent, as well as specific circumstances under which the more extensive procedure will occur.

Bowel perforation is a risk inherent in many intraoperative procedures, both intraluminal and extraluminal. While this risk may be unavoidable, the jury in this case likely concluded that the surgeon was careless with regard to the patient’s wishes and must have been careless in his technique as well.

In sum, make sure the patient fully understands any procedure and has signed a proper consent for that procedure. Risks inherent in a procedure must be discussed fully with the patient and included on the consent form. Lastly, the consent form should address the anticipated scope of the procedure, as well as any conditions that might require the scope to be broadened.

In Illinois, a 36-year-old woman underwent a bilateral salpingo-oophorectomy, performed by the defendant gynecologist.

The plaintiff claimed that the defendant removed both of her ovaries although she had consented to the removal of only the left ovary. The plaintiff also claimed that her colon was perforated during the surgery, necessitating multiple subsequent hospitalizations.

Outcome
According to a published report, a $1.2 million verdict was returned against both defendants (the gynecologist and the medical facility where the surgery took place).

Comment

Setting aside the issue of the bowel damage for a moment, it is important to consider the matter of patient consent for medical procedures.

A patient who has not given consent for a procedure can recover for damages under the tort of battery, whether or not harm was suffered—even if the procedure was helpful.

Tortious battery is an offensive contact occurring without a person’s consent. The question of “offensiveness” is decided by an objective “reasonable person standard.” In the classic example, a person bumped by other passengers on a crowded subway cannot recover for battery because a reasonable person expects this type of contact on crowded subways. Yet a person groped on that same subway has a case of battery because a reasonable person does not expect this contact, as it is offensive.

Here, the patient presumably consented to a unilateral, not a bilateral, oophorectomy. In any instance where the patient has given consent for surgery, it is important to not exceed the scope of that consent. However, the extent of surgery will commonly depend on intraoperative findings, with decisions often made on the spot. In such cases, the possibility of the contingent procedure must be addressed in the surgical consent, as well as specific circumstances under which the more extensive procedure will occur.

Bowel perforation is a risk inherent in many intraoperative procedures, both intraluminal and extraluminal. While this risk may be unavoidable, the jury in this case likely concluded that the surgeon was careless with regard to the patient’s wishes and must have been careless in his technique as well.

In sum, make sure the patient fully understands any procedure and has signed a proper consent for that procedure. Risks inherent in a procedure must be discussed fully with the patient and included on the consent form. Lastly, the consent form should address the anticipated scope of the procedure, as well as any conditions that might require the scope to be broadened.

In Illinois, a 36-year-old woman underwent a bilateral salpingo-oophorectomy, performed by the defendant gynecologist.

The plaintiff claimed that the defendant removed both of her ovaries although she had consented to the removal of only the left ovary. The plaintiff also claimed that her colon was perforated during the surgery, necessitating multiple subsequent hospitalizations.

Outcome
According to a published report, a $1.2 million verdict was returned against both defendants (the gynecologist and the medical facility where the surgery took place).

Comment

Setting aside the issue of the bowel damage for a moment, it is important to consider the matter of patient consent for medical procedures.

A patient who has not given consent for a procedure can recover for damages under the tort of battery, whether or not harm was suffered—even if the procedure was helpful.

Tortious battery is an offensive contact occurring without a person’s consent. The question of “offensiveness” is decided by an objective “reasonable person standard.” In the classic example, a person bumped by other passengers on a crowded subway cannot recover for battery because a reasonable person expects this type of contact on crowded subways. Yet a person groped on that same subway has a case of battery because a reasonable person does not expect this contact, as it is offensive.

Here, the patient presumably consented to a unilateral, not a bilateral, oophorectomy. In any instance where the patient has given consent for surgery, it is important to not exceed the scope of that consent. However, the extent of surgery will commonly depend on intraoperative findings, with decisions often made on the spot. In such cases, the possibility of the contingent procedure must be addressed in the surgical consent, as well as specific circumstances under which the more extensive procedure will occur.

Bowel perforation is a risk inherent in many intraoperative procedures, both intraluminal and extraluminal. While this risk may be unavoidable, the jury in this case likely concluded that the surgeon was careless with regard to the patient’s wishes and must have been careless in his technique as well.

In sum, make sure the patient fully understands any procedure and has signed a proper consent for that procedure. Risks inherent in a procedure must be discussed fully with the patient and included on the consent form. Lastly, the consent form should address the anticipated scope of the procedure, as well as any conditions that might require the scope to be broadened.