Assuming the patient was injured in some way by this allegedly unauthorized surgery, you may have a case for a battery. The entire presise of medical law is that the doctor must have the patient's consent to perform a procedure.
If a patient is deemed incompetent, this can be considered a battery. However, this is not necessarily so just based upon being adjudged incompetent for a trial--the standards are completely different.
If you wish to investigate, gather the medical records and contact a lawyer who handles medical negligence cases.
Stephen L. Hoffman
Law Office of Stephen L. Hoffman LLC
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.
In a medical negligence claim the patient can only recover for the damages proved to be caused by the physician. It is unclear what if any damages were caused.
It may be possible to file if there are damages. The plaintiff must show that the neurosurgeon failed to inform the person of risks and/or alternatives to the procedure, which a reasonably well qualified neurosurgeon would have disclosed under the same or similar circumstances. The plaintiff also must show that if the neurosurgeon has disclosed those risks and/or alternatives, a reasonable person in the plaintiff's position would not have submitted to the procedure. The plaintiff must also show that the plaintiff was injured as a result of the procedure and that the failure to disclose the risk and/or alternatives was a proximate cause of the injury.
This answer provides general information and should not be considered legal advise giving rise to attorney-client relationship.
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