Attorney Vincent Sabatini has obtained a $278,000 settlement for an elderly client who fell and suffered a fractured hip. The client was at a day care facility for adults requiring supervision. At the time of the fall, no one was supervising the client. The defendant denied liability. Only after extensive discovery efforts did the defendant recognize its liability and agree to settle the case for a fair and just amount.
To understand what informed consent means in a medical context and how to prove a failure to obtain informed consent, the following information is provided. This information is taken directly from Connecticut court’s jury instructions in cases involving a failure to obtain informed consent cause of action.
The theory of informed consent imposes a duty upon a physician that is completely separate and distinct from (his/her) responsibility to skillfully diagnose and treat the patient’s ills. A physician has a duty to disclose all known material risks of the proposed procedure. A material risk is risk that a reasonably prudent person in the patient’s position would have found significant in deciding whether or not to submit to the proposed procedure. The physician has a duty to give a patient whose situation permits it all information material to the decision to undergo the proposed procedure. This duty includes a responsibility to advise the patient of feasible alternatives. The duty to warn of alternatives exists only when there are feasible alternatives available.
The plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of (his/her) injury. In order to find proximate cause in this context, you must find that a disclosure of the material risks of the proposed procedure would have resulted in a decision by a reasonably prudent person in the patient’s position not to submit to the proposed procedure. The particular patient’s reaction, had (he/she) received the information as to the risks involved, is not the governing one with respect to the duty to inform. The standard is what a reasonably prudent person in the patient’s position would have decided if suitably informed of all material risks.
Despites sometimes initial subtle symptoms, blows to the head can cause long term traumatic brain injuries. Every year in the United States, almost 1.5 million people suffer a traumatic brain injury (TBI). There are many TBI causes including car accidents, slip and falls, and physical assaults. Traumatic Brain Injury is defined by the Brain Injury Association of America as a blow or jolt to the head or a penetrating head injury that disrupts the functioning of the brain. While not all head trauma results in TBI, it sometimes difficult to determine the severity of the brain injury. Approximately, 50,000 people die each year due to TBI. The Center for Disease Control estimates that more than 3 million Americans living with TBI require long term assistance in performing daily activities.
TBI is often missed in initial medical examinations following a head injury. Initial symptoms can be subtle and can be easily overlooked. The effects of TBI can be delayed and not evident for days or weeks. People suffering from TBI experience cognitive difficulties with attention and memory, sleep problems, confusion, speech problems, mood and emotional disorders, and sensory and perceptual problems. TBI can also cause physical seizures, chronic pain, increase the risk of developing Parkinson’s disease, Alzheimer’s and other brain disorders.