Unconscious null-para arrives in emergency room with the uterine rupture in progress. A cesarean section is performed followed by hysterectomy. Understandably, the surgery causes a permanent impairment. Result? No battery. Why? The hospital and physicians can prove an affirmative defense of consent. In a prima facie case, for a patient incapable of giving or withholding consent, the consent is implied by law. So too, there was no intent to harm the patient. What about negligence? There is a room for the negligence claim in this case, because the hospital and physicians had the duty to perform a procedure with careful considerations of per quod determinants, burden/benefit ratio, including the wishes of the patient to remain fecund or fertile. To establish a negligence and to build a case, the informed consent doctrine is irrelevant, for this case addresses all six elements of medical negligence: duty, applicable standard of care, breach, actual cause, proximate case, and damage. The law of surgical negligence is an ever-evolving overhaul of acts, codes, stare, decisis, or doctrines. Any definition in surgical malpractice that includes the notion of reasonableness raises alarm bells. The action for surgical negligence may extend from misdiagnoses, wrong site surgery, misrepresentation, to injurious falsehood, investment privilege, joint ownership, patent infringement, culpability, or defamation. Packed in 27 chapters and 29 illustrations of surgical scenes, the current effort briefs 50 published cases of surgical negligence, from I.R.A.C. (issue, rule, analysis, conclusion), precedents, legal limits, to dispositions, verdicts, remedies, and reasoning pursuant to the Constitutional or statute enactments in the United States and District of Columbia. The presented cases are sourced at LexisNexis, (TM) BlueBook, and Westlaw. All cases are published, and free for the public visit under the U.S. Health Insurance Portability & Accountability Act (HIPAA), the Brady Rule, the Patient Safety & Quality Improvement Act 2005 (PSQIA), 14th Amendment Due Process Clause, 17 U.S.C. §§ 512, Digital Millennium Copyright Act (DMCA); among other instruments. Each case analysis ends with keywords.
About the Author: Naira R. Matevosyan is a medical doctor (MD, PhD) who also holds a law degree (Master of Science in Jurisprudence/MSJ) from Seton Hall University School of Law. This book was written in 2013, before her actual studies in the Law School. Naira was admitted by Emory University Law School in August 2013 for a Juris Master (JM) program, but she deliberately deferred because of financial constraints. Emory Law School kindly held her place for two years; in the meantime, Naira was allowed to audit Criminal Law and Constitutional Law classes (for free) at Emory Law for two semesters and was a welcomed visitor at Emory Law. In December 2014, Naira was simultaneously admitted by Duke University Law School and Seton Hall Law School for MSJ. She graduated Seton Hall Law School and earned her Master of Science in Jurisprudence (MSJ) degree in January 2016. A member of the Federal Bar Association (FBA), Naira Matevosyan has presided as a panel judge in the 19th Thurgood Marshall Moot Court Competitions held in March-April, 2016 at the Superior Court of DC, and the U.S. Court of Federal Claims. Other law books written before her Studies at Seton Hall: "Maternal-fetal conflicts, from torts to criminal justice: Medical-legal study of 120 cases," "The Battered Woman Syndrome," "Synesthesia: The Phenomenon and its Presentation in Torts and Criminal Justice," "The Battered Woman Syndrome: Perspectives in Criminal Law and Clinical Psychology," "Court-visited surgical errors: A guide to forensic testimony," "Spleen," "Procreative Liberty," "Rhabdomyoma & Rhabdomyosarcoma," and "Court-visited erroneous diagnoses and surgeries of parathyroids." Books written after earning the Law Degree from Seton Hall: "Reproductive Health Law Survey: Essays and Multiple-choice Q & A," "Isoimmunization in Pregnancy: Medical & Legal Survey," "Cervical Dystocia: Medical & Legal Survey," "Capgras and Fregoli Syndromes in Criminal Justice: A Guide to Forensic Testimony."