For most people, having a bad day at work results in a "do-over": rewriting a proposal, recasting a deal, reworking a project. But medical professionals don't have the luxury of do-overs. Their actions or failure to act can result in serious harm or even death for their patients. At such times, it becomes human nature to look for someone to blame, but statistics show that more often than not, doctors are not to blame for such negative outcomes.
I have been defending medical professionals facing negligence and malpractice suits for almost 20 years now, and I am deeply familiar with the risks associated with various procedures and treatments - risks that most people and their families fail to keep in mind when undergoing treatment. At this point, there is not enough available information to accuse Joan Rivers' doctors of malpractice, but when the evidence is examined in the coming weeks, the debate will focus on the formal legal definition of negligence.
Under New York law, for instance, a doctor who renders medical service is obligated to have a reasonable degree of knowledge expected of an average specialist who would provide such service, which in this case was throat surgery in a Manhattan outpatient facility (See NY PJI 2:150). Ultimately, a court-accepted medical specialist must "opine," or "hold and state his or her opinion," that the attending physician committed negligence that played a part in the patient's death. Of course, the doctor's attorneys are entitled to their own medical experts who will state their own professional opinions. In the courtroom, the case ultimately comes down to a "battle of experts" and the answer to a singular question: which expert will the jury believe?
Questions regarding the Joan Rivers case will range from whether she should have been cleared for surgery at all, given her age and condition, to whether the surgery should have been performed at a clinic or hospital, to whether the proper anesthetic was used. The biggest issue in a case such as this, involving clinics or surgical facilities outside a formal hospital, center on the matter of "response" - that is, did the facility's personnel respond properly to signs of medical distress? Did they take necessary actions rooted in best practices? Did they call an ambulance when appropriate, or did they freeze, or - even worse - stall as a way to avert the kind of embarrassment that can bankrupt a medical practice?
Once again, the case will come down to the most convincing medical expert and what he or she is successful in making a jury believe. In many instances, the case results in a very costly verdict against the clinic. In 2008, a Pennsylvania jury awarded $20.5 million to the family of a girl who died after having liposuction at an outpatient clinic. If a jury finds that negligence existed in the Rivers case, damages could be just as high given that the legendary comedienne was still working, remained in high demand and had plans to continue performing.
Another issue to be considered is whether Ms. Rivers provided "informed consent" before the procedure. In New York, the law provides that before obtaining a patient's consent to an operation or invasive diagnostic procedure, the doctor is duty-bound to provide certain information concerning what he or she proposes to do, whether alternative procedures exist, and whether there are reasonably foreseeable risks associated with the procedure about to be performed (See NY PJI 2:250A).
It's for this reason that patients must sign a form indicating that they were informed of such risks before they are even allowed in the operating room. Here, Rivers should have been informed both that there was a risk of death and that she had the option to have had the procedure performed in a hospital that was better equipped to respond to emergencies. If the Rivers investigation results in suit and goes before a court, the consent forms will be "Exhibit A."
Given my career experience, I can say without a doubt that doctors get up each morning intending to do their very best. They take an oath promising "to do no harm," and they are committed to saving lives, easing pain and improving the overall health of their patients. No doubt the medical professionals at the center of Rivers' care had the best of intentions and are mourning her unfortunate death more deeply than we might imagine.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also anational television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360, and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
