Articles Posted in Informed Consent

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initialsA woman suing a doctor, a physician’s assistant (“PA”), and a surgical center for malpractice, as a result of receiving an operation on the wrong knee, is entitled to partial summary judgment on the issue of liability, according to a Bronx judge.

Following an automobile accident, the plaintiff sought treatment from Dr. Hostin, an orthopedic surgeon, for a torn meniscus and a partial ACL tear in her right knee. Prior to the surgery, the doctor initialed the plaintiff’s right knee and then left to care for another patient who’s surgery was scheduled just prior to the plaintiff’s. When the plaintiff awoke from anesthesia, she realized that the surgery had been performed on her left knee, instead of the intended right one.

According to court papers, Dr. Hostin, after finishing the other patient’s surgery, entered the operating area and saw that surgery had already been started by his PA. A camera had been previously inserted under the plaintiff’s kneecap and the doctor saw a torn meniscus in the live video, so he decided to direct the PA on how to complete the procedure. Dr. Hostin did not realize the mistake until after completion of the wrong-site surgery.

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On August 24, 2010, DePuy Orthopaedics, Inc., a company owned by Johnson & Johnson, issued a recall for its ASR XL Acetabular System and its DePuy ASR Hip Resurfacing System because of higher than average revision rates, discussed in detail here on our website, and in our blog post entitled Syracuse DePuy ASR Hip Implant Lawyers Review Timing of Recall In New York.

New York defective DePuy ASR hip implant lawsuits are soon to follow. According to a Medical Quack press release, two days before DePuy announced the recall it sent a letter to orthopedic surgeons to alert them of the impending recall. Apparently, the letter was accompanied by an informational packet and a medical release form for doctors to provide to the patients who received DePuy implants. The Medical Quack press release also reported that DePuy offered orthopedic surgeons $50.00 for every medical release signed by one of their patients.

The Syracuse defective implant lawyers at Bottar Leone, PLLC, want to know why, if true, there is a need to compensate surgeons for securing patient medical records. “We strongly encourage patients with a DePuy hip to avoid signing that form,” said Anthony S. Bottar, Esq. a New York defective hip recall lawyer with Syracuse-based Bottar Leone, PLLC. Bottar is a DePuy hip recall lawyer with experience handling other mass tort cases. “By signing that form, a patient gives DePuy the right to review all of the patients confidential medical records and x-rays. It may even give DePuy the right to take control of the explanted hip device after a revision surgery.”
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Syracuse medical malpractice lawyer Anthony S. Bottar, managing partner of Bottar Leone, PLLC, one of Upstate New York’s oldest law firms with a practice limited to medical malpractice, wrongful death, birth injuries, work injuries, brain injuries, and product/premises liability, was elected president of the New York State Academy of Trial Lawyers, an organization dedicated to protecting, preserving and enhancing the civil justice system.

The New York State Academy of Trial Lawyers boasts a membership of more than 1400 judges, law clerks, law firms, lawyers, paralegals and law students, including: Syracuse medical malpractice lawyers handling cases concerning stroke misdiagnosis, failure to diagnose cancer and failure to prevent a heart attack; Syracuse work injury lawyers handling cases concerning construction site accidents, scaffolding accidents and injuries caused by a fall from a height; Syracuse birth injury lawyers handling cases concerning fetal hypoxia and ischemia, cerebral palsy and Erb’s palsy; Utica brain injury lawyers handling cases concerning concussions, post-concussion symdrome and TBI; Watertown medical malpractice lawyers handling cases concerning Samaritan Medical Center negligence and Fort Drum physician mistakes; and Watertown injury lawyers handling New York State Thruway accidents.

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The Food and Drug Administration recently released a proposal to modify informed consent rules that apply to clinical trials. If the proposal is adopted, all clinical trials will have to be accompanied by a statement that “clinical trial information for such clinical trial investigations has been or will be submitted to the National Institutes of Health/National Library for inclusion in the clinical trial registry databank.”

Informed consent is a legal procedure where a doctor presents a patient with information about a procedure — including the potential benefit, risks, and available alternatives — so that the patient can make an informed decision about whether to undergo/forego a test, surgery or clinical trial. A patient must have legal or mental competency to provide informed consent. That is, minors cannot give consent, nor can people who are not competent because of duress, injury, drugs, alcohol, dementia and/or mental retardation. Where a doctor performs a surgery or procedure without securing informed consent he or she may be liable for professional negligence.
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