Informed Consent May Not Protect You in a Lawsuit

Wayne J. Guglielmo, MA


June 27, 2017

In This Article

A Freak Accident During Surgery Leads a Woman to Sue

An elderly patient who fell off the operating table while she was "opened up" during cardiovascular surgery at a clinic affiliated with the Duke University Health System will have her day in court, explains a story in The Herald Sun, which is published in Durham, North Carolina.[3]

A lower court had initially rejected Marjorie Locklear's medical malpractice suit on the grounds that she and her attorney hadn't followed the prescribed procedure when they filed their case in 2015. In North Carolina, plaintiffs claiming medical injury must first certify that their medical record has been reviewed by an expert willing to say that the treatment provided had fallen short of the standard of care.

Locklear's attorney said that he had "inadvertently" made an error and should have been permitted by the lower court judge to amend his initial complaint. In its 2-to-1 ruling, the North Carolina Court of Appeals argued in effect that the procedural error was beside the point because the claim from the first was clearly more about negligence than malpractice: Keeping a patient from falling off the operating table, explained the judge who wrote the decision, isn't something that should tax a medical professional's "clinical judgment and intellectual skill." The third judge on the panel vigorously disagreed, however, arguing that such an interpretation not only "creates a loophole" but defeats the current malpractice statute's "legislative intent."

Locklear—who said that she sustained a variety of injuries as a result of the fall—will now be permitted to sue Duke University Health System and the surgeon. A parallel suit against the Duke-affiliated clinic where the surgery took place was dismissed on procedural grounds.


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