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By: Taryn M. Kadar
Many have heard of the unfortunate and the unexpected death of Joan Rivers while having a planned throat surgery. Along with grieving their loved ones, it would not be unusual in such situations for a family to seek counsel to analyze whether to bring a medical malpractice suit. Other celebrity estates have brought successful medical malpractice claims such as Michael Jackson. In such situations, some of the key questions that would need to be answered are as follows. First, did Rivers give the doctors consent to perform, if necessary, a biopsy during a planned endoscopy? In New York, the law provides that “before obtaining a patient’s consent to an operation or invasive diagnostic procedure or the use of medication, a doctor has the duty to provide certain information concerning what the doctor proposes to do, the alternatives to that operation, procedure or medication and the reasonably foreseeable risks of such operation, procedure or medication.” N.Y. Pattern Jury Instr.–Civil 2:150A.
A second question would be whether the doctors failed to exercise reasonable care during the procedure? This question is harder to answer, and in most cases ultimately ends up in a battle of experts. Each side hires their own experts to testify that the doctors did or did not exercise reasonable care based on the circumstances. The experts should consider questions such as whether the surgery should have been performed in a clinic or hospital, whether the proper anesthetic was used, and whether the clinic and its doctors properly responded to signs of medical distress.
As with all potential medical malpractice cases, there are many questions and factors that first need to be considered before bringing a lawsuit. Indeed, the Rivers’ situation, while high profile is simply a common example of many cases involving the death of a patient where a family might explore a medical malpractice case. The reality in today’s litigious world is that any unexpected medical outcome may lead to heightened scrutiny and a legal challenge even if the doctors made no error. Medical professionals should heed the warning to make sure all consent and risk protocols are followed, proper response plans are in place, and that all rules and procedures meet the minimum requirements set forth by the law.