Posts Tagged ‘medical malpractice’

Family Charges Physician With Neglect In Supervision Of Care

JULY 17, 2000 VOLUME 8, NUMBER 3

When a loved one is institutionalized, family members usually do not have the skills and information necessary to closely monitor the quality of care. They usually rely heavily on the advice of the patient’s physician to direct the course of treatment. In those cases where the physician becomes part of the problem, it may be extremely difficult for family members to respond.

Girtha Mack resided in the Covenant Care Nursing and Rehabilitation Center in California. Her attending physician, Dr. Lian Soung, supervised her medical care at Covenant. Ms. Mack’s children were actively involved in her care, and regularly checked with both the nursing home and Dr. Soung.

According to her children, Ms. Mack was left in a bedpan for 13 consecutive hours and developed untreatable Stage III bedsores. Dr. Soung and the nursing home allegedly concealed that fact from the children for weeks, and refused to permit them to inspect the bedsores until the nursing home ombudsman intervened on their behalf.

Dr. Soung opposed hospitalization for Ms. Mack, insisting that the care she was receiving at the nursing home was appropriate. Two months later, Ms. Mack’s condition worsened, and Dr. Soung abruptly abandoned her as a patient. He refused to respond to requests for hospitalization by the nursing home staff. Ms. Mack died a few days later.

California law, like that of Arizona and other states, provides special protection against abuse, neglect or abandonment of elderly or dependent adults. Ms. Mack’s children brought a lawsuit against Dr. Soung, alleging that he had abused and neglected Ms. Mack. They also charged Dr. Soung with intentionally inflicting emotional distress on the family.

Dr. Soung persuaded the trial court to dismiss both complaints against him, and Ms. Mack’s children appealed. The California Court of Appeal agreed that the action for intentional infliction of emotional distress should be dismissed, but returned the case to the lower court for a trial on the neglect charge.

The court noted that the California law on abuse applies to “care custodians” and not physicians. The section of the law dealing with neglect, however, includes health care providers such as physicians.

By using the neglect statute, Ms. Mack’s family apparently hoped to accomplish two things. First, the action would not be governed by rules applied to medical malpractice lawsuits. Second, the possible recovery from Dr. Soung is larger because of the neglect statute’s enhanced penalty provisions. Now the Mack family will be able to pursue their litigation under that neglect statute. Mack v. Soung, May 17, 2000.

Arizona’s law is similar to that in California, but would be even easier for Ms. Mack’s children to apply. It covers “any person who has been employed to provide care” to a “vulnerable” adult. The language of the Arizona statute is unusually broad in a number of ways, including the definition of a “vulnerable” adult (“an individual who is eighteen years of age or older who is unable to protect himself from abuse, neglect or exploitation by others because of a physical or mental impairment”). Like California’s law, the Arizona statute provides for the possibility of punitive damages.

Decision To Forego Surgery Also Requires Patient Consent

JULY 26, 1999 VOLUME 7, NUMBER 4

Jean Matthies was eighty-one years old when she fell and broke her hip. She had been living alone in her apartment in Union City, New Jersey, and had been quite independent. She did her own shopping, cooking and housecleaning. But with a fractured hip, she could not even summon help; she lay undiscovered in her apartment for two days. When she was transported to a local hospital emergency room, she was deyhdrated and confused.

Dr. Edward Mastromonaco was the orthopedic surgeon called in on Ms. Matthies’ case. He considered her condition, medical history and x-rays, and decided not to undertake surgery for her broken hip. Instead, he prescribed what he called a “bed rest treatment.” Ms. Matthies was confined to her hospital bed for several days, followed by increasing periods in a chair and being assisted to walk around her hospital room.

There were several reasons Dr. Mastromonaco gave for deciding against the surgical alternative. He later testified that she was elderly, frail and in a weakened condition. She had, forty years earlier, suffered a stroke which left her partially paralyzed on her right side, and made her use her right leg as a “post,” pushing herself forward with her left leg. Besides, she suffered from osteoporosis, and Dr. Mastromonaco decided that her bones might be too porous to hold the surgical screws; if they weakened, she would later require hip replacement surgery.

Dr. Mastromonaco made his decision at least partly on the basis that he thought Ms. Matthies should not continue to live alone. In explaining his position later, he told the court that “I’m not going to give her that leg she wanted. She wanted to live alone, but she couldn’t live alone. . . . I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone.”

Dr. Mastromonaco’s vision of what should happen with Ms. Matthies came to pass precisely as he suggested. After a short period of bed rest her right femur displaced, leaving her right leg shorter than her left. She never regained the ability to walk, and she now lives in a residential care facility.

Ms. Matthies sued Dr. Mastromonaco for medical malpractice, alleging both medical malpractice and a violation of principles of informed consent. She argued that Dr. Mastromonaco should have disclosed the surgical alternative and discussed the choices with her, rather than deciding on the “bed rest treatment” on his own.

Dr. Mastromonaco argued that there is not duty to secure informed consent to a non-invasive medical procedure, and the trial court agreed with him. The New Jersey Court of Appeals and the New Jersey Supreme Court did not, and reversed the award in favor of Dr. Mastromonaco.

“Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients,” wrote the court. “To discharge their responsibilities, patients should provide their physicians with the information necessary for them to make diagnoses and determine courses of treatment. Physicians, in turn, have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances. … [T]he ultimate decision is for the patient.” Dr. Mastromonaco must now show that he discharged his duty to adequately inform Ms. Matthies of her choices, both surgical and non-surgical. Matthies v. Mastromonaco, July 8, 1999.

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