It is not often that a medical malpractice case alleges that a battery was committed by a medical provider due to the fact that the medical provider usually obtains the prior consent of the patient before performing particular medical procedure(s) on the patient (a “battery” may be defined as a harmful or offensive, nonconsensual touching).
In a recent Pennsylvania medical malpractice case, the plaintiff claimed both battery and medical negligence for which the jury determined that both battery and medical negligence occurred; the jury awarded compensatory damages in the amount of $100,000 and punitive damages in the amount of $25,000, which was upheld by the Superior Court of Pennsylvania on June 9, 2014.
The Pennsylvania medical malpractice plaintiff alleged that she experienced the following horrifying incidents while she was a patient in a local Pennsylvania hospital:
The Plaintiff was admitted to the Defendant hospital on July 19, 2007 for a partial gastrectomy. Several days post-surgery, a nurse advised her that a CT scan was required to rule out a pulmonary embolism, and explained that the intravenous access (IV) in her arm was inadequate to administer dye for a CT scan with contrast and therefore a larger gauge I.V. would have to be inserted.
Late July 25, 2007 or early July 26, 2007, the Defendant physician made the following attempts to place the I.V., without success: five or six attempts in the crease of each arm; three or four attempts in her hand (after which the Plaintiff requested the Defendant physician to stop because of the pain); after initially stopping his attempts at placing the I.V., the Defendant physician advised the Plaintiff that she “wouldn’t live to see the sunrise” if the I.V. access was unsuccessful, which caused the Plaintiff to acquiesce in the Defendant physician’s further two or three unsuccessful attempts to place the I.V. in her hand. At that point, the Plaintiff instructed that any further attempts at placing the I.V. be stopped until the hospital laboratory opened early in the morning.
In complete disregard of the Plaintiff’s instruction to stop, the Defendant physician returned to the Plaintiff’s bedside a short time later with two nurses, advising the Plaintiff that he intended to place the I.V. in her neck. The Plaintiff expressly advised the Defendant that she did not consent to the procedure, to which he allegedly stated that he did not need her consent, after which he lowered the head of the bed and directed the nurses to hold the Plaintiff’s arms down as he leaned across her body to insert an I.V. in her neck. The Plaintiff was crying, experiencing pain in her arms, hands, neck, and the surgical site, and pleaded with the Defendant physician to stop as he made two unsuccessful attempts on each side of her neck to insert the I.V.
At 6:00 a.m. that morning, the CT scan was performed without incident using the original I.V. present in the Plaintiff’s arm.
The written opinion of the Superior Court of Pennsylvania affirmed the trial court’s decision to give an adverse inference instruction relative to the Defendants’ failure to produce certain witnesses at trial and their spoliation of evidence.
The Adverse Inference Jury Instruction
The trial had instructed the jury that where a potential witness is within the control of one of the parties and is shown to have special information relevant to the case so that his or her testimony would not merely be cumulative, and where the witness’s relationship to one of the parties is such that the witness would ordinarily be expected to favor that party, then if that party does not produce the witness’s testimony and there is no satisfactory explanation for the failure to do so, you may draw the inference that the testimony would not have been favorable.
The Spoliation Of Evidence Instruction
The Superior Court of Pennsylvania stated that in determining whether and how to sanction a party for spoliation (i.e., the alteration or destruction of evidence), the trial court must weigh three factors: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.
The Superior Court of Pennsylvania held, “We find no abuse of discretion. We agree that the record reveals sufficient evidence, if credited by the jury, to support the $100,000 award. [The Plaintiff] endured a painful medical procedure undertaken against her will and without her consent. Not long thereafter, she began regurgitating blood, necessitating an endoscopic surgical procedure to stop the bleeding … Furthermore, the award of $25,000 in punitive damages on a $100,000 compensatory damage award was not so disproportionate as to shock the conscience. The trial court found no indication that the jury was ‘guided by partiality, prejudice, mistake or corruption[,]’ and the punitive damage award bore ‘a reasonable relationship to the award of compensatory damages.'”
Leola Bowser and Anthony Carter, W/H v. Albert Einstein Medical Center and Ramin Ramsey, M.D., No. 203 EDA 2013. Read the entire opinion of the Superior Court of Pennsylvania by clicking here.
If you were injured as a result of medical negligence or medical battery in Pennsylvania, you should promptly consult with a Pennsylvania medical malpractice attorney who may investigate your Pennsylvania medical malpractice claim for you and represent you in a Pennsylvania medical malpractice case, if appropriate.
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