Content Reviewed by:
Dov Apfel
Content Reviewed by: Dov Apfel
Since 1979, Dov Apfel has been passionate about advocating for birth injury and medical malpractice victims. Mr. Apfel’s career-long record of achievements in birth injury litigation, education, and advocacy has been recognized by the Executive Board of the Birth Trauma Litigation Group of the American Association for Justice. His expertise is demonstrated by his numerous awards, presentations on birth injury topics at legal conferences for organizations like the AAJ and ATLA, and articles published by Trial Magazine and many others.
The variety of medical malpractice cases is more extensive than most imagine. Considering the total number of births that occur each year, many somewhat unique cases of mistakes, confusion, and preventable harm will occur. That is not to say that there are not clear legal trends when it comes to types of malpractice that lead to lawsuits and accountability. For example, delayed C-sections and use of excessive force are likely the two types of professional negligence that most often lead to the filing of an actual birth injury lawsuit. That is probably because those injuries are the most common, can often be proven in court, and come with significant consequences for those affected requiring compensation
Unique Birthing Malpractice
While excessive force and oxygen deprivation resulting in the development of cerebral palsy are the birth injuries that often make-up newspaper headlines and blog posts–there are others.
For example, Lawyers.com published a post this week on a unique case where a woman is suing her doctor for tying her tubes (to prevent a future pregnancy) after having a C-section. The woman claims that she did not want her tubes tied and had no idea the doctor performed the operation while she was sedated. The case is a complex one, with claims of a signed consent form and raising issue of informed consent in the medical context.
According to reports, the woman was shocked to learn about the procedure when she went to her doctor to receive birth control pills. The doctor explained that she did not need them, because of the tubes-tying procedure a few months earlier.
The plaintiff alleges that the doctor mentioned that she did not need any more kids because she had enough already–a 22 year old with three children. Conversely, the defendant-doctor claims that a consent form was signed which clearly indicated the plaintiff’s understanding of the tubes-tying procedure and the implications.
Malpractice & Informed Consent
As the story has been framed thus far, it seems clear that the matter will center on the apparent consent form, whether it was signed and whether the patient actually knew what she was signing. The idea of informed consent can be a confusing one, because it is far different than malpractice claims alleging outright errors on the part of the medical professional.
On one hand, it is easy to assume that if the patient signed the form, that’s the end of the matter. However, courts have long explained that random formalities are not enough for a medical professional to perform procedures—the patient need to “actually” know what they are agreeing to and understand the implications. That may occur–even with a signed form–particularly if the patient was in the midst of a medical event at the time, rushed to sign many documents, and not made explicitly aware of what a particular document indicated. After all, we all sign so many things when in the hospital that it is very easy to overlook one page. It would be natural to be upset if such a paper allowed the performance of a surgery that one did not necessarily need or want.
