Surgery on the wrong part of the body is one of the most egregious medical errors that can occur. Thus, if a doctor operates on the incorrect body part, the person injured may be able to pursue multiple claims against the doctor, including medical malpractice, lack of informed consent, and battery. In a recent New York opinion, a court explained what a patient must prove to establish liability under each of these claims in a case in which the defendant performed surgery on the wrong site on the plaintiff. If you underwent a surgical procedure that was not properly performed, it is in your best interest to speak to a Rochester surgical malpractice attorney to assess your potential claims.
The Plaintiff’s Surgery
It is reported that the plaintiff was scheduled to undergo surgery to remove an abscess on her left leg. The defendant performed the procedure but removed a cyst from the Plaintiff’s Bartholin gland, rather than an abscess from her leg. The plaintiff, who suffered psychological and physical harm because of the improperly performed surgery, filed a lawsuit against the defendant alleging claims of medical malpractice, battery, and lack of informed consent. The defendant moved for summary judgment, and the trial court granted his motion. The plaintiff then appealed, and on appeal, the trial court ruling was reversed.
Claims Arising out of a Procedure Performed on the Wrong Part
On appeal, the court noted that the defendant’s motion included the deposition transcript of the plaintiff wherein she described that the defendant advised her he was going to remove an abscess from her leg but instead operated on her Bartholin gland. Therefore, per the defendant’s own submission, she failed to demonstrate that there were no factual disputes on material issues in the matter as to whether she operated on the wrong area and whether the error caused the plaintiff’s harm, as required to obtain a summary judgment under New York law.
Further, the court explained that the generic consent form the plaintiff signed demonstrated that there was an issue of fact with regards to the informed consent claim as well, specifically, as to whether the defendant advised the plaintiff of the benefits and risks of the proposed procedure, alternative treatments, and what the procedure entailed. The court explained that pursuant to New York law, the mere fact that a plaintiff signed a consent form that does not contain any details about the operation does not mean that a defendant is entitled to judgment as a matter of law on an informed consent claim.
Finally, the court explained that the defendant failed to show that there was no longer a factual dispute over whether the operation constituted an intentional, offensive, bodily contact, as required to recover on the battery claim. Thus, the appellate court reversed the trial court ruling.
Speak to a Trusted Malpractice Attorney in Rochester
Doctors that operate on the incorrect part of a person’s body can cause grave harm, and should be held accountable for their recklessness. If you were injured due to a surgical error, it is wise to speak to a lawyer regarding your potential surgical malpractice claims. The trusted medical malpractice attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers can advise you of your rights and help you to pursue justice for your losses. You can reach us at 585-653-7343 or via the form online to set up a consultation.