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Patient’s Direction To Not Use Urinary Cather Ignored; Expert Not Required


In preparation for an appendectomy, a man informed members of the nursing and support staff that the man did not want a urinary catheter inserted. A mask was placed over the man’s face and gas was administered that caused the man to be rendered unconscious. A urinary catheter was inserted. The man underwent an appendectomy. A surgical needle was left in the man’s body following the procedure.

 

Nine days after the procedure, the man returned to the hospital complaining of a fever. The man was admitted that day. The man was discharged two days later.

 

Approximately two years later, the man sought care from another physician. The physician discovered a metallic object extending from the rear wall of the man’s gastric antrum into the peripancreatic fat. The gastric antrum is the lowermost part of the stomach before it empties into the upper division of the small intestine. The needle was removed surgically.

 

The man sued the hospital for medical malpractice. The complaint alleged medical negligence based on a surgical needle being left in the man’s abdomen during the appendectomy. The complaint also alleged medical battery based on the administration of anesthesia to the man without consent and the insertion of the urinary catheter contrary to the man’s express directions. Additionally, the complaint alleged fraud in that hospital staff forged the man’s signature on the consent for anesthesia or pain management services form and falsely claimed personal observation of the man signing the form. The complaint also alleged fraudulent concealment in that hospital staff purportedly conspired to conceal that the number of needles counted before and after the appendectomy revealed that one was missing, altered the man’s medical records, and refused to release certain medical records. No affidavit of merit was filed in support of the complaint.

 

The Circuit Court of Kane County dismissed all counts with prejudice.

 

The Appellate Court of Illinois, Second District, affirmed in part and reversed in part. The court held that the trial court properly dismissed (1) the medical negligence count for failure to support it with an affidavit of merit, (2) the medical battery claim alleging use of anesthesia exceeded the scope of consent for failure to support it with an affidavit of merit, (3) the fraud claim where the man failed to allege reliance on the purportedly fraudulent assertion, and (4) the fraudulent concealment claim which required medical knowledge to assess because the man failed to support it with an affidavit of merit. However, the court held that the trial court erred in dismissing the battery claim alleging that use of a catheter exceeded the man’s express direction not to do so.

 

The trial court properly dismissed the medical negligence count for failure to support it with an affidavit of merit. The complaint claimed that a needle could migrate from the surgical site of the appendectomy to the wall of the stomach and into the peripancreatic fat. The court reasoned that, whether this was possible was a matter that required medical knowledge. Lacking expert medical knowledge, a court could not say whether this claim was frivolous. As such, it was necessary for the man to file an affidavit of merit in support of this claim.

 

The trial court properly dismissed the medical battery claim alleging use of anesthesia exceeded the scope of consent for failure to support it with an affidavit of merit. An informed consent claim is a type of medical malpractice claim. The submission of an affidavit of merit was required in an informed consent case where medical knowledge was necessary to comprehend the scope of a patient’s consent and whether a particular procedure exceeded that scope. The court reasoned that a lay person would not know whether it was even possible to perform an appendectomy of the sort the man underwent without anesthetic. The court concluded that submission of an affidavit of merit was required to support the medical battery claim alleging use of anesthesia exceeded the scope of consent.

 

The trial court properly dismissed the fraud claim where the man failed to allege reliance on the purportedly fraudulent assertion. The man asserted that the alleged forgery could have been done on any of the 580 days between the surgery and the date that the hospital disclosed the man’s medical records. Thus, the forgery, as alleged, could have occurred well after the surgery. The court found it was not apparent how the man relied on the alleged forgery and the man did nothing to explain how the man could have relied on it if it occurred after the surgery. As such, the man failed to allege an essential element of fraud. The court further noted that the man’s allegations lacked specificity, as is required when pleading fraud.

 

The trial court properly dismissed the fraudulent concealment claim, which required medical knowledge to assess, because the man failed to support it with an affidavit of merit. The man’s fraudulent concealment claim was an attempt to avoid the statutory affidavit of merit requirements applicable to medical negligence claims by recasting his medical negligence and medical battery claims as a fraudulent concealment claim. The facts the man cited in support of the fraudulent concealment claim were about the hospital staff purportedly leaving a surgical needle inside the man during the appendectomy. The man could not avoid the statutory requirements by alleging, in essence, “defendants left a needle in me and they did not tell me they did.”

 

The trial court erred in dismissing the battery claim alleging use of a urinary catheter exceeded the man’s express direction not to do so. Where a patient expressly refused to assent to some procedure, implying consent from the circumstances becomes problematic. The court concluded that expert testimony was not necessary to ascertain whether a claim was frivolous where the man allegedly stated, “no catheter,” and the hospital staff inserted a catheter. Such issues were well within a layperson’s grasp.

 

The Appellate Court of Illinois, Second District, affirmed the trial court’s dismissal of all of the man’s claims except the medical battery claim pertaining to the urinary catheter, which it remanded for further proceedings.

 

See: Dix v. Rush-Copley Med. Ctr., Inc., 2017 WL 3433105 (Ill.App. 2 Dist., August 9, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

 

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