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September 12, 2012

Sinus Surgery Lawsuit Ruled Against ENT

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A patient who had undergone endoscopic sinus surgery suffered detachment of the extraocular muscle resulting in double vision that required further surgical intervention.

A jury found against the ENT and ambulatory surgery center rewarding $2.5 million dollars to not only the patient, but also the wife "for loss of consortium".

Damage to the eye and vision is part of the normal consent process for endoscopic sinus surgery when considering the geographic proximity of the eye and sinus cavities.

Eye muscle injury as in this case is particularly relevant when surgery is performed on the ethmoid sinus cavity which is located between the eyes (purple in illustration). Risk of injury is even higher when powered instruments are used like a diego sinus shaver.

Although informed consent appears to have been present, the jury still found for the patient:

- $1.5 million to Mr. Dias for pain and suffering
- $0.5 million for loss of service
- $0.5 million to his wife for loss of consortium.

This case appears to suggest that informed consent does not really provide any legal protection. A bad outcome regardless of consent implies sufficient cause for lawsuit... and winning.

This case also suggests that any bad outcome can affect a patient's ability to have intimate relations with a spouse which is sufficient cause for lawsuit and winning.

I wonder if I now have to add to the informed consent (which may not afford me any legal protection) the possibility of "loss of consortium" with a spouse.

Source:
Patient Awarded $2.5 Million After Suffering Endoscopic Sinus Errors. Outpatient Surgery Magazine 9/5/12

2 comments:

  1. Informed consent has always been suspect as far as protecting a surgeon against a suit. Lawyers always can find issues that were not brought up. There have also been cases where the patient admits he was informed but says he "didn't understand" what the potential complication really involved. Try to explain a possible common bile duct injury to an 80-year-old man with a high school education.

    Face it (no pun intended), a bad outcome is often hard to defend regardless of the consent form that was signed.

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  2. I agree the loss of consortium thing looks a bit out of whack. But just because a patient was informed of risks does not mean a physician should be absolved should one of the mentioned risks arise due to negligent execution or post-operative management. If all you're going on is the writeup in the link, there's nothing there that says the physician delivered care appropriately (only that his defense was "he was warned").

    Just because it may be more difficult to get a patient to understand the true risks and expectations of a surgical intervention doesn't excuse using a "one size fits all" consent process.

    And informed consent, when done in a way that truly tries to help a patient gain understanding (instead of pro forma "consenting" the patient) is one of the best ways to reduce malpractice risk. Or at least, that's what the U of Michigan's health system things, anyway: http://educatetheyoung.wordpress.com/2012/07/19/transparency-begins-with-informed-consent-and-shared-decision-making/

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