Ms. Collins is an attorney specializing in medical malpractice in Long Beach, California. She can be reached at [email protected].
Claim of lack of consent for hysterectomy
In 2009, a 48-year-old New York woman underwent an operation to remove a uterine fibroid. The operation performed by her gynecologist was a total hysterectomy with salpingo-oophorectomy. The woman later claimed that, at the office visit with the gynecologist, she was told she could have her surgery the next day or she would have to wait a month. She chose to have it the next day and was informed she had to undergo immediate preparations for her admission to the hospital and surgery. The patient claimed that on the day of surgery she was seen by another physician, who revealed that a hysterectomy was planned. The patient maintained that she protested but the doctor explained a hysterectomy was necessary because of her heritage and family medical history, which increased her risk of ovarian cancer. The woman claimed that she and this physician reached an agreement that a hysterectomy would be done only if cancer was found. While she did sign the consent form, she claimed it only stated “TAH/BSO.” The patient learned after her surgery that cancer was not found at the time of the procedure.
The patient sued those involved with the operation, alleging lack of informed consent and performance of unnecessary surgery. She contended that it had been agreed that a hysterectomy would be performed only if cancer was encountered.
The jury awarded the patient $142,000.
In this case, it was learned during trial that the patient had a preoperative CA-125 test done and the results indicated no cancer. These results were not revealed to the patient or shared during discovery. Because the defense withheld this information, the court struck the physician’s answer to the original lawsuit complaint, which left the defendant with no defenses to the charge of negligence. The case went to the jury on the issue of damages only, with the task of determining how much money to award the patient.