TEXAS LAW ALERT
FALL 2006 ISSUE
INFORMED CONSENT FOR HEALTH CARE
When you hear the phrase "medical malpractice," you usually think of a doctor who has made some terrible medical mistake, such as misdiagnosing a disease or leaving a sponge in a patient during surgery. However, other kinds of things also give rise to what Texas calls a health-care liability claim, including the failure of a doctor to get a patient's informed consent for treatment.
The idea behind informed consent is that a patient has the right to make decisions about what kind of medical treatment he or she will agree to receive. In order for a patient's consent to be considered "informed," the doctor must tell the patient of the benefits and risks presented by a particular course of treatment, which allows the patient to have enough information to make an informed decision.
Because patients do not have medical degrees, informed consent does not require doctors to tell their patients every technical medical detail. It does require them to tell their patients about any fact that would affect a reasonable person's decision to accept or decline a particular treatment.
Generally, this means that the doctor should tell the patient:
(1) the diagnosis;
(2) the nature and purpose of the treatment being proposed;
(3) the chances of the treatment's success;
(4) the risks of the treatment;
(5) the benefits of the treatment;
(6) alternative treatments that might be available (and their risks and benefits); and
(7) the risks and benefits of doing nothing at all.
Patients, in turn, should listen carefully to what they are told, ask questions if they do not understand the doctor's explanation, and make sure that they know what it is they are agreeing to.
In Texas, a patient is often asked to give his or her informed consent by signing a preprinted form setting forth all of this information. This form exists for many of the more common treatments and procedures (particularly surgical procedures), so that doctors can be sure that they have not left anything out.
In other cases involving less common kinds of treatments and procedures, there is no preprinted form, and the doctor must sit down with the patient and provide the information that is needed to make an informed decision. Because a patient has a right to consent to medical treatment, a doctor who fails to get a patient's informed consent may be sued. Legally, the doctor may be liable to the patient for battery, even if the treatment is successful.
Sometimes a patient is unable to give informed consent. For example, a person who has been in a bad car accident and who is unconscious cannot tell the doctors in the emergency room that it is okay to administer the treatment that is needed. Other patients may not be able to give their informed consent even if they are conscious: Small children or people with mental problems may be unable to fully understand what the doctor is telling them and therefore cannot give their consent. In cases such as these, the law still requires informed consent, but it comes from a different source. In cases involving minors or those with mental problems, the doctors can get the informed consent of the patient's parent or guardian, who consents on his or her behalf.
Where an adult is unable to give informed consent because of a medical condition, the law implies consent to all treatments to which a reasonable person would have consented had he or she been able to do so. This provision enables ER doctors to perform emergency surgery to save the life of the unconscious accident victim.
Although informed consent cases are less likely to make the evening news than is the case of the surgeon who has amputated the wrong leg, they are just as serious as any other health-care liability case. If you believe that you have been the victim of a treatment that was provided without your informed consent, contact our office and we will be happy to discuss the matter with you.
THANKS FOR THE REFERRALS
Despite this modern age of marketing and advertising, the best source of our new business is word-of-mouth. We are grateful that many of our clients and friends feel confident in recommending our firm.
Unfortunately, when people need a good lawyer, they often do not know where to turn. If you or someone you know has been injured and needs legal help, call us.
MANDATORY ARBITRATION CLAUSES
Have you ever read the fine print of your credit-card agreement? How about the receipt for the TV you purchased? Your apartment lease? If you do, you may find that the fine print requires you to give up your right to sue if you have a complaint about the transaction and, instead, participate in arbitration.
Arbitration is similar to a private court, where, instead of presenting your complaints to a judge, you present them to an arbitrator. Arbitration has been around for years and has long been used by large companies to resolve business disputes. Arbitration is also not all bad--it allows parties to resolve their disputes privately, it allows sophisticated businesses to agree in advance on the ground rules for resolving disputes, and it is sometimes a faster means to resolution.
However, in the past decade or so, the number of businesses requiring that all disputes against them be arbitrated has exploded. Although arbitration works well in some contexts, it is usually a bad deal for consumers, for several reasons. First, it is expensive. Unlike in a court (where you do not need to pay the judge for the time he spends hearing your suit), in arbitration you not only pay for your lawyer but you also pay for the arbitrator, who is usually a lawyer and whose services cost hundreds of dollars per hour. Second, the deck can be stacked against the consumer. Arbitration clauses frequently require the arbitration to occur in a distant city or to be conducted by an arbitrator who is a member of a group seen as being "business friendly." Finally, since companies are the ones to set the ground rules for arbitration, the rules themselves are often unfair to consumers, requiring them to give notice of their dispute within an unreasonably short period of time or precluding their lawyers from taking any depositions to learn about the facts of the case.
Unfortunately, arbitration agreements are usually enforced by the courts. Be sure to read carefully the fine print of business agreements to determine if you will be bound by arbitration.
WHEN THE INSURANCE COMPANY TOTALS YOUR CAR
More and more people are having the same experience: They are involved in a collision that is not their fault, but, rather than fixing their car, their insurer declares that it is "totaled." The insurance company pays what it claims is the fair market value of the car and tows it away. However, many people like the car they have and do not want to take a chance with another one. Other people feel that they are not being offered a fair price by the insurer. Do these people have any rights?
When you buy insurance, you sign a contract with the insurer. These contracts always provide that the insurer does not have to pay to repair a car when the repairs will cost more than the car is worth. Therefore, the insurer does have the right to "total" your car in such a case. Depending on the age and the condition of the car, even a relatively small amount of damage may result in the car's being totaled.
However, if you really want to keep your car and have it repaired, most insurers will allow you to do so. If you do, the insurer has the right to deduct the salvage value of the car from what you are paid. Also, you do have the right to be paid for the actual value of your car, which means the insurer should pay you what your car is actually worth. If you and the insurer disagree about its value, it may be worthwhile to have the car appraised and present the appraisal to the insurer to try to convince it to pay more.
If all else fails, you can hire a lawyer, although you will have to decide whether the difference in values is enough to make it worth your while to hire a lawyer to represent you.
WHO CAN BE SUED FOR MEDICAL MALPRACTICE?
Who can be sued for medical malpractice? The answer is pretty much anyone who provides medical care in a negligent way that causes a patient some injury. This includes:
* doctors, who are probably the most common target of medical malpractice suits;
* nurses, who can commit malpractice while caring for patients on their own;
* hospitals, which can be vicariously liable for the malpractice of their employees, and which may (under certain circumstances) be liable for permitting a doctor to practice in the hospital when it should have taken away his or her privileges;
* nursing homes, which are often called upon to provide medical care to their patients, and which may be liable in the same way as hospitals; and
* pharmaceutical companies, which are usually not liable for medical malpractice, but which may nevertheless be liable for injuries caused by their drugs under certain circumstances.
One thing is certain: All of these cases are complex, and all of them require the assistance of a properly qualified lawyer to help you decide whether you have a case and, if so, to help you win it.
AVOID "PHISHERMEN"
If you have an e-mail account, chances are that you have already been subject to a phishing attack. "Phishing" (sometimes called "spoofing") is an attempt to get you to reveal private information about yourself (usually your Social Security number or financial information) by sending you an official-looking e-mail.
Phishers usually tell you that the sender must "confirm" your identity or "verify" your account information, and then ask you to e-mail this information back to them. Some phishers are getting even more sophisticated--one trick is to claim that you missed jury duty, then threaten that you will be arrested if you do not send certain requested information to clear up the matter.
Because phishers rely on the cooperation of their victims, it is easy to protect yourself. Legitimate companies never ask for information by e-mail. Be very suspicious if you receive such a request. If you want to find out if the request is a legitimate one, do not respond to the e-mail or follow any computer links it contains (some phishers go to the trouble of creating fake websites). Instead, pick up the phone and call the company that supposedly sent the e-mail. If the company does need to contact you, it should be able to help you over the phone.
DANGEROUS DRUGS: PAXIL
According to many studies, the drug Paxil, a commonly used antidepressant that is also used to treat a number of mood disorders, may have many serious side effects. These studies suggest that Paxil significantly increases the risk of suicide in users aged 18 to 30.
Other studies have linked Paxil with an increased risk of birth defects in the hearts of fetuses of mothers taking Paxil, an increased risk of coronary artery disease in adult users, and withdrawal symptoms (including severe headache, anxiety, dizziness, indigestion, pain, insomnia, and hypersensitivity to light) leading to severe users' becoming virtually addicted to the drug.
As a result of these studies, the FDA has issued a warning about Paxil use by young people, and has also asked the maker of Paxil to reclassify the drug so that it will not be used by pregnant women. Although these are positive steps, they do nothing to help those who have already been injured, or even died.
If you or someone you love took Paxil and suffered adverse side effects, please contact this office. We will assist you in evaluating whether you have a case.
