There can be an additional battery claim where the actual procedure varied from the disclosure.
Mink v. University of Chicago (IL 1978)
Battery case. IL law at the time was better developed in intentional infliction of emotional distress than negligent infliction of emotional distress.
Res Ipsa Loquitur
Foundational case—Ybarra v. Spangard (CA 1944)
Appendectomy patient received nerve injury while under anaesthesia.
Res ipsa loquitur theory permitted against multiple defendants on joint liability basis where it cannot be determined who was at fault but at least one must have been.
Denying the claim would permit negligent practitioners to escape liability through conspiracy of silence.
[Unlike Summers v. Tice, where both defendants were definitely negligent, res ipsa loquitur is permitted even though some of the Ybarra defendants were probably not at fault.]
Subsequent applications
Bardessono v. Michels (CA 1971)
Res ipsa loquitur instruction permitted in case involving series of injections that produced excruciating pain and resulted in partial paralysis.
Greenberg v. Michael Reese Hospital (IL 1979)
Res ipsa loquitur depends on clear negligence almost certain to produce injury.
Massive internal bleeding after surgery resulted in death. Alternative theories: Weak vein or improper suturing. Res ipsa loquitur held to depend on determination of precise location of bleeding.
Statutory modifications of res ipsa loquitur in medical malpractice cases
Several states, such as NV, limit application of res ipsa loquitur by statute to narrow circumstances and require expert testimony, demonstrated deviation from standard of care, etc.
The “Crisis”
Malpractice insurance premiums now total about $12 billion each year, representing about 1% of total medical costs.
In NY, getting an award takes 6–10 years and 70% of the award goes to transaction costs. About half of all claimants recover something through settlement or award.
Reform efforts that have been tried
Most effective
Limiting contingent fees.
Abolishing collateral-source rule.
Capping noneconomic damages.
Other
Shortening statutes of limitations.
Empanelling review panels.
Limiting the size of awards.
Capping total damages (mostly struck down as unconstitutional).
Harvard Medical School Study (NYS hospitals, late 1970s to early 1980s)
3.7% of admitted patients received iatrogenic injuries.
27% of these injuries were due to negligence.
1.3% of patients brought negligence claims.
19% of these claims involved actual negligence.
Therefore, there’s massive underclaiming.
50% of those injured recovered in two months or less.
Annual deaths caused by:
Job injuries: 6,000
Auto injuries: 45,000
Iatrogenic injuries: 150,000
Death and injury rates from medical care were higher among the elderly, the poor, and minorities.
Claims were more common among those treated at higher-cost facilities, where the rates of iatrogenic injury were lowest.
The most likely to be injured were thus the least likely to sue and to collect.