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Thursday, May 03, 2007

Ind. Decisions - Still more on Mullins v. Parkview

Yesterday the ILB posted a reader's reaction to the Supreme Court's ruling yesterday in the case of Mullins v. Parkview. Here are several other responses - all comments are from members of the Indiana legal community.

(1) I think the bottom line in this case is that the surgeon and/or the anesthesiologist will end up with a non-delegable duty to make sure that the intubation was properly performed. I think you are right that every patient contemplating surgery should pay attention to this case and should probably refuse any consent to have students operate on them. But in the Mullins case I think that the matter will ultimately and properly be resolved in favor of the patient based on the liability of others.

(2) Thank you for pointing out the issues with Mullins today. I must say I'm shocked, and think it nigh-on impossible for any battery claim against a doctor to ever survive summary judgment.

I found this article helpful and think it on point: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920602

(3) I'm a long-time reader, first time e-mailer. Today you posted a reader's reaction to the Indiana Supreme Court's opinion in Mullins v. Parkview. I disagree with the reader's assessment. The reader focused too narrowly on a couple words and missed the preceding point that there was not "even a suggestion of intent to harm." That's an efficient way for the Court to say that the "substantial certainty" version of intent was inapplicable.

If the facts showed the student disregarded risks (such as by acting without direction or supervision-both negated by the Court's discussion of the facts), then the Court would have been obliged to discuss it. As the Court explained, the plaintiffs made no attempt to proceed down either path. The plaintiffs relied solely upon the patient's consent form.

A careful reading of the opinion will not cause confusion.

Thank you for the blog; it's become my lunchtime treat!

(4) [Followup from the same reader who wrote the initial comments yesterday]

I cannot stop thinking about this unanimous (unanimous!!!) Indiana Supreme Court decision today. It is wrong not only because it misstates the intent with which tort law is concerned, but also because it makes surgical consents in Indiana absolutely meaningless. In doin so, it ignores the fundamental definition of the tort of battery.

First, when the Supreme Court in this case describes tortious intent with the words "intent to harm" and "intent to cause a harmful contact," they are not just changing the law of the tort of battery in Indiana, they are changing the law as to all intentional torts. Assault, defamation, invasion of privacy, false imprisonment, intentional infliction of emotional distress, trespass, intentional interferences with economic relations. For centuries, the law of intentional torts has been, among other things, our protection against the prankster who causes real harm. "But it was just a joke. I didn't intend to do any harm," was not a defense. Nor was it a defense for the slanderer and libelist to respond with, "I didn't intend to harm you by publishing those lies about you." By the standard set by our state Supreme Court today, any attempt to protect your right of privacy by suing for damages with be successfully defended by just answering, "but I didn't intend to cause you any harm. I was just curious." Today, all of those legal protections that we have enjoyed for centuries are placed in jeopardy by the sloppy logic and language. It will take decades to set the law back on track if this case is allowed to stand.

The second, and perhaps even more serious aspect of this decision, is the failure of the court to address the basic definition of the tort of battery. Battery is an intentional touching without justification. It requires no intent to do harm. Battery does not require violence or injury. To kiss a woman who does not want to be kissed is a battery. (citations omitted) The gist of battery is the lack of consent to the touching. Justice Sullivan gives passing acknowledgment to the fact that "failure to obtain informed consent in the medical context may result in a battery."

So exactly what did the patient consent to in this case? The patient "received assurance from the attending anesthesiologist, Dr. Kathryn Carboneau, that she would personally be handling Ruth’s anesthesia. Dr. Carboneau’s consent form, which [Mrs. Mullins, the patient] signed, read in part: "I understand that my anesthesia care will be given to me by the undersigned or a physician privileged to practice anesthesia." (emphasis added) She did not consent to a person studying to be an EMT to put a tube down her throat. She had been promised that it would be Dr. Carboneau or some other physician privileged to practice anesthesia.

Where is the Court's respect for the rights of the patient? Once the patient is under anesthesia is she just a slab of meat on the table to be poked and prodded by whomever the Hospital and the doctors present allow? Did this patient have no right to expect that the instructions and consents that she had given, would be honored? Did she have no right to expect that the promises made to her by these doctors would be kept? Will the law not protect her from injury doen to her when she is completely helpless and vulnerable in that operating room? Well, according to our Supreme Court, apparently not. By consenting to have Dr. Carboneau perform the intubation had Mrs. Mullins consented to have just anyone do it? Of course not. My wife may consent to being kissed by me (on occasion), but that doesn't mean that she has consented to anyone else doing it.

It is no issue whatever that EMTs in training need to learn and practice the skills necessary for their career and service. What has been thrown overboard in this decision is Mrs. Mullin's right to decide for herself that those skills are not going to be learned on her. She has the right to choose her doctor. She has the right to choose her hospital. She has a right to choose what is going to be done to her in surgery and by whom. When the hospital "preceptor" entered the operating room and asked whether Mrs. Mullins "was a patient upon whom VanHoey might practice intubation," Dr. Carboneau owed a duty to professionally, ethically, and under her legal duties to say "no." She did not. Instead, she knowingly and intentionally allowed someone other than a "physician privileged to practice anesthesia" to stick a tube down Mrs. Mullins' throat, and do it badly. As to VonHoey's liability for battery, if you are going to stick a tube down someone's throat, isn't it reasonable to ask that person's permission before doing so? And if that person is unconscious, shouldn't you check the consent forms required by the hospital before surgery? Shouldn't the hospital "preceptor" have checked the consent forms? Should VanHoey, and the hospital, be able to escape liability by simply saying "the doctors gave us permission." It wasn't theirs to give.

[More] I should have thought to post this earlier. Here is the Sept. 27, 2006 ILB entry on the oral argument, incuding links to the Court of Appeals ruling and the audio of the argument, as well as excellent Niki Kelly coverage.

Posted by Marcia Oddi on May 3, 2007 09:32 AM
Posted to Ind. Sup.Ct. Decisions