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In 2011 patient was maxed out on pain medication for over 1 year with lumbar spine pain. He elected to have lumbar spinal fusion

Waukegan, IL |

w/laminectomy. Prior to his decision he was found incompetent /unfit to stand trial by the State's mental health examiner based on the amount of pain medication that he was taking. was the surgeon irresponsible/liable to proceed with surgery on a patient ,that if it was a contract ,per se ,in contractual law would be null and void? So, if the patient is incompetent for legal proceedings isn't the patient incompetent to elect for surgery and can he hold the surgeon liable?

Attorney Answers 3


  1. From what you have said so far, you are putting the cart before the horse. If he was in severe pain for a year, a lumbar surgery might have been his best option--and you have not said the doctor was negligent in performing the surgery.

    The contents of this post do not establish an attorney-client relationship. Any comments made in this post are general in nature and may not apply to the specific facts and law of your case.


  2. I thought I graduated law school, although the powers that be at my law school are probably shaking their collective head over that oversight ("we let HIM graduate?").

    Your question reads like a hypothetical wrapped in a riddle, enigma, and a law school exam.

    What exactly is the injury to begin with? If the surgery occurred and no harm occurred, then what difference does any of this make anyway?

    Now, let's consider whether incompetence in one court renders one incompetent for purposes of consenting to surgery. The answer is that it depends on the situation, circumstances, and other factors, so even if the patient was "not competent" to testify in a court of law, that does not necessarily mean that person could not elect to have a surgery to alleviate pain. Again, informed consent depends on whether patient understood risks of surgery, understood what the procedure was etc.

    So let's say there was no valid consent. There are a few problems. One, we don't have an injury, so the case is valueless. Second, there could be a limitations period issue, as the surgery occurred in 2011. Generally, there is a 2 year time limit in which to file suit, subject to some extensions for discovery and the like.

    What I can tell you is that if you bothered to post this question online, something is bothering you and you should give it the proper attention by talking to a medical malpractice lawyer.

    Stephen L. Hoffman
    Law Office of Stephen L. Hoffman LLC
    Chicago, IL
    773-944-9737
    Email: stephen@hofflawyer.com
    Website: www.hofflawyer.com
    Blog: www.hofflawyer.com/blog/

    This answer posted on Avvo is for informational and educational purposes only. There is no attorney-client relationship created or formed and you should not rely on this as legal advice. The suggestion is made that if you wish to protect your rights, you consult with an attorney immediately.


  3. Good question. It would make sense, and could be considered a battery if the doctor knew that the patient was unable to consent. However, if the surgery was necessary and successful, there is probably not much to complain about on the facts that you give. Although a few interesting hypothetical questions come to mind.

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