Legal Review & Commentary: Psychosurgery leads to a $7.5 million verdict in Ohio

News: For years a woman suffered from an obsessive-compulsive disorder, which she believed would be corrected through psychosurgery. The procedure resulted in complete incapacitation, and she brought suit against the provider. She was awarded $7.5 million in damages for past and future medical care, pain and suffering, and loss of consortium for her spouse.

Background: A 58-year-old woman, who suffered from an obsessive-compulsive disorder that caused her to wash her hands and shower excessively since age 28, learned about psychosurgery on the Internet.

She made an appointment and was assessed as a viable candidate for the procedure. The surgery was successfully performed; however, post-surgery she developed a brain infection, leading to brain damage, which rendered the plaintiff unable to care for herself. She now requires around-the-clock care and suffered a loss of short-term memory. She is unable to walk, stand, eat, or use the bathroom by herself.

The plaintiff brought suit against the provider and alleged negligent technique and lack of informed consent and claimed she thought she was undergoing a single-part procedure called a cingulotomy, when in fact an experimental two-part surgery called a cingulotomy with a capulotomy was performed.

The plaintiff also claimed that the brain infection was due to the presence of an intestinal organism and was caused by improper sterilization techniques. Furthermore, the plaintiff maintained that she was not a proper candidate for the experimental surgery because she had not been thoroughly evaluated for the procedure that was actually preformed.

In its defense, the provider argued that the plaintiff’s informed consent had been properly obtained and that the plaintiff’s infection was a known risk of the procedure. At trial, a $7.5 million verdict was returned. The award included $300,000 for past medical care, $1.1 million for pain and suffering, $5 million for future medical care, and $1.1 million for loss of consortium for the patient’s spouse.

What this means to you: "The importance of a thorough and well-documented informed consent and patient evaluation cannot be overlooked as demonstrated by this case. In this instance, because of the patient’s history of obsessive-compulsive disorder, the surgeon might have considered videotaping his conversation with the patient as part of the informed consent process. It would be interesting to know how the procedure was actually listed on the consent form signed by the patient. Full disclosure must be given to the patient of all intended and possibly intended procedures. For example: laparoscopic cholecystectomy and possible open exploratory laparotomy and cholecystectomy,’" says Patti Ellis, RN, BSN, LHRM, a risk management consultant in Miami.

The consent form should include a statement about emergency procedures to correct unforeseen conditions that may arise during the course of surgery, she adds.

"With regard to the specific possibility of infection, I don’t think I’ve ever seen or heard of an informed-consent process where the surgeon did not identify infection as an inherent risk of the procedure. Again, a thorough and well-documented informed consent consisting of the most common risks of the procedure as well as those specific to the patient’s medical condition are crucial to the informed consent process.

"It is unclear in this particular case whether the experimental capulotomy was associated with any additional risks that were not inherent in the cingulotomy procedure. If that were the case and in fact these additional risks were not disclosed to the patient, then the surgeon would be held liable as the jury found here.

"Although this patient suffers from a long-standing history of obsessive compulsive disorder, she still has the capacity to give informed consent unless otherwise determined to be legally incompetent by a court of law," adds Ellis.

"While there are no guarantees that a health care provider won’t be sued, practicing within the standards of acceptable medical practice, the importance of informed consent process and excellent documentation can’t be stressed enough.

"The return of such a large award by the jury in this case seems to be consistent with the excessive jury awards across the country," concludes Ellis.

Reference

Mary Lou Zimmerman and Sherman Zimmerman v. The Cleveland Clinic Foundation, Cuyahoga County (OH) Common Pleas Count, Case No. 399411.