Articles Posted in Medical Battery

In a tragic case of medical malpractice recently decided by one state appellate court, a woman underwent a liposuction procedure at a medical spa and tragically died just a few days later from septic shock. The woman’s husband filed a medical malpractice claim against the company, alleging that the bacteria causing the shock came from the medical spa during his wife’s procedure. He claimed that certain equipment had not been properly disinfected and sterilized.

ScalpelThe case went to trial once, but it resulted in a mistrial based on the improper questioning of a witness in front of the jury. The case was retried, and the jury found in favor of the woman’s husband. The jury awarded him over $3 million in damages. The spa appealed the decision. It argued that there was not sufficient evidence for the jury to find in favor of the husband.

The court explained that it would not set aside the jury’s verdict as long as it was supported by substantial and competent evidence. It also would not second guess determinations of credibility and the weight of the evidence made by the jury. In this case, there was a medical expert who explained how the spa’s procedures for sterilizing and disinfecting the reusable medical equipment used in the procedure breached the standard of care for cosmetic surgeons. There also was evidence that the spa’s breach caused the woman’s death because septic shock occurs after an infection causes the body to go into shock, and she had bacteria present near where she was injected. Even though there was some evidence presented by the defense suggesting that the bacteria could have come from her post-procedure care, the jury’s decision was still reasonable and would not be second guessed. Accordingly, there was substantial evidence supporting the jury’s verdict, and the decision was affirmed.

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In a recent case, a woman filed suit against a hospital and her doctor for battery after undergoing a medical procedure. She alleged that she had not given her informed consent for having an intrauterine device (IUD) implanted. About a year after she had the IUD implanted, she found out that her IUD had not been approved by the Federal Drug Administration because of the location to which the device had been shipped.

StethoscopeShe filed the complaint but failed to file a medical expert affidavit, as required by state laws. In this particular state, the law required that plaintiffs filing medical malpractice actions file an expert affidavit along with the complaint. However, the woman argued that her claim did not require her to file the expert affidavit because this was a battery claim rather than a medical malpractice claim. Ultimately, the state’s supreme court disagreed, holding that a battery claim against a medical provider based on a lack of informed consent also requires the filing of a medical expert affidavit.

The court held that even though the claim filed was a battery claim, it still had the same requirements of a general medical malpractice claim. Since cases involving the issue of informed consent generally consider the professional standard required in such cases, they are subject to the same requirements no matter which claim is alleged. There is a question of what the professional standard is in obtaining informed consent. As a result, a medical expert affidavit was required, stating that the expert supports the allegations in the claim.

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An Illinois Appeals Court recently confirmed that some plaintiffs in medical battery claims are required to include a certificate of merit at the same time that they file the initial lawsuit. According to one news source, this was the second appeals court to require the certificate in this type of case.

a-baby-s-coming-1442263Under Illinois law, when a plaintiff files suit against a medical professional alleging negligence, the plaintiff is required to attach a sworn statement, or affidavit, to the complaint indicating that the claim is reasonable and that there is merit to the case. The statement must be based on the plaintiff’s consultation with a medical professional about the circumstances of the case. Medical negligence is also called medical malpractice.

In the recent case, one of the plaintiff’s claims was for medical battery in addition to medical malpractice. In a medical battery action, a plaintiff claims that the treating doctor touched or operated on a part of his or her body without the plaintiff’s consent during a medical procedure. In the first medical battery case that the court addressed, a surgeon cut the patient’s tendons during surgery, even though the surgery did not require that the tendons be severed, and the patient had not authorized that the tendons be cut.

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