Is a doctor's failure to inform me of my risks considered malpractice?

Asked about 1 year ago - Plano, TX

At a 20 week sonogram while pregnant, she mentioned that I had a heart shaped uterus. She explained it like "it was just how some women are" with no mention that it often leads to pre-term labor. My water broke 6 weeks early, I waited 12 hours before going to the hospital. While having a c-section my OB noticed a fibroid (non-symptomatic) and asked if she could remove it. I asked if it needed to be removed. She recommended it without any mention that there is a risk of excessive blood loss. 6 days later, I called OB w/ extreme stomach pain. She insisted it was constipation (even though I was throwing up). I begged to come in. She refused. 18 hours later I went to ER, was diagnosed with an ileus, had an NG tube in stomach for 5 days. I lost ability to nurse my newborn & could have died

Attorney answers (4)

  1. Robert Warren Painter

    Pro

    Contributor Level 11

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    Lawyers agree

    Answered . I am sorry to hear what you experienced. Under Texas law, you are describing a claim for the failure of the physician to obtain your informed consent before performing with the procedure. The way these cases are analyzed is whether or not a reasonable person would have declined the procedure if there was a full disclosure of the risks. Based on what you have described, I believe it would be difficult for you to succeed in a case against this physician.

    Medical malpractice cases are complex and I believe that clients are best served by contacting an experienced... more
  2. Marc Edward Stewart

    Contributor Level 16

    2

    Lawyers agree

    Answered . I do not think you'd have a viable medical negligence claim. The treatment for the ileus would have been the same even had you been seen earlier. That you weren't fully made aware of the risks with the misshapen uterus would not have really changed the outcome of your pregnancy. Had she told you that the fibroid removal had a slim risk of hemorrhage (which you unluckily had), you likely would be hard-pressed to prove that you would have told her not to remove it.

    Also, I would point out that you are in Collin County, Texas. If this medical care occurred in that county (and not in Dallas County), then you'd likely face one of the most conservative jury pools that can be imagined. Why is that important? Juries in Collin County do not find for injured patients very often. It's a real tough venue.

    You might give a ring to Maria Wormington in old downtown McKinney. She is a medical negligence attorney with a great deal of experience. Being located in Collin County, she'll be able to advise you better than anyone on avvo.

  3. Christian K. Lassen II

    Pro

    Contributor Level 20

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    Lawyers agree

    Answered . I'm glad that your baby is OK. Sounds like a tough case, but have a local malpractice lawyer order your records to review.

  4. Don Karotkin

    Contributor Level 16

    1

    Lawyer agrees

    Answered . What you describe is what lawyers call an informed consent case. Informed consent in Texas is largely statutory. Pursuant to statutory authority, the Texas Medical Disclosure Panel promulgates two lists. List A is the list of procedures requiring "full disclosure of specific risks." List B is the list of procedures requiring no disclosure. Uterine fibroid removal is on List A. The risks required to be disclosed are:

    (5) Removing fibroids (uterine myomectomy).
    (A) Uncontrollable leakage of urine.
    (B) Injury to bladder.
    (C) Sterility.
    (D) Injury to the tube (ureter) between the kidney and the bladder.
    (E) Injury to the bowel and/or intestinal obstruction.

    As you can see, excessive bleeding is not on the list of risks. However, "obstruction of the bowel," which is the same thing as "ileus," is on the list. Therefore, if the informed consent form you signed warned of either "obstruction of the bowel" or "ileus," you have no potentially valid informed consent claim. Otherwise, you may have one. However, the written informed consent form you signed for the C-section may provide that you consented not only to the C-section, but also to any and all other procedures the surgeon deemed necessary or appropriate during the course of the surgery. You will need to consult a lawyer to analyze this issue for you.

    Please take note that a signed informed consent form, no matter how correct and complete, is not a license for the surgeon to render negligent care. If the surgeon was either ill advised to remove the fibroid or was negligent in the technical performance of the myomectomy, you may have a potentially valid malpractice claim based on that negligent conduct.

    As you can easily see, this is a complex area of the law. Also, these cases are very fact-specific. To find out whether or not a claim is worth pursuing, I suggest that you promptly consult a Plano or Dallas plaintiffs' lawyer who is certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. A link to the Board's website appears below.

    Good luck.

    www.tbls.org

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