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New York Appellate Court Discusses Informed Consent Regarding Birth Injury


A fourteen-year-old plaintiff, by and with her father, sues the hospital and physician who treated her at birth and for a period thereafter for injuries sustained in the first weeks of her life. Only two pounds, eight ounces at birth, she is today a healthy teenager with an above-average I.Q.; however, she is totally blind (blindness) as a result of retrolental fibroplasia (RLF) disease, which plaintiffs argue was caused by the administration of excessive amounts of oxygen over her first thirteen days (birth injury or birth injury accident). The complaint alleges medical malpracticeand lack of informed consent.

Up until the mid-1950’s it was accepted medical practice to administer quite liberal doses of oxygen to premature infants to prevent death or brain damage. Research of this period ultimately showed, however, that prolonged and high concentrations of oxygen in an incubator (over 50%) led to the certain development of RLF. Thus, by the time of plaintiff’s birth, in May of 1970, it was well-established that oxygen should only be applied to counteract respiratory problems and cyanosis in premature infants, as exhibited by plaintiff, and then only at relatively low percentage-volumes and for only brief periods.

A New York Injury Lawyer said at trial, evidence showed that plaintiff was subjected to concentrations of oxygen between 31-40% over a thirteen-day period. This proof permitted a finding, based also upon the opinion of plaintiff’s expert, that this continuous use of oxygen caused her RLF. However, there was also an abundance of evidence that without any oxygen, plaintiff would have died or suffered brain damage.

Was the oxygen given to plaintiff administered improperly so as to make out a claim of medical malpractice?

The jury found no departure from accepted medical or hospital practice as it existed by either the hospital or the attending pediatrician.

The court now addresses the issue on lack of informed consent.

The testimony presented showed that the attending physician never informed plaintiff’s parents about the risks of oxygen use nor, specifically, the possibility that blindness might result. Accordingly, neither was there any discussion of the range of percentage-volume and duration of oxygen therapy possible. A Queens Personal Injury Lawyer said given the complexity of factors and outcomes in treating a grossly underweight and premature infant, the issue of lack of informed consent was clearly not reducible to whether, if so informed, the parents would have been forced to choose between death and blindness.

Were the infant’s parents adequately and reasonably informed and based on that, did they give their consent to the procedure and treatment undertaken?

Whether an action for lack of informed consent is viewed as a malpractice action based on negligence or as a malpractice action based on common law principles of assault and battery, it is nevertheless a tort action and requires proof of a causation relation between the defendant’s disputed conduct and the resulting injury to plaintiff. A Staten Island Personal Injury Lawyer said an an action raising lack of informed consent there are two separate causation elements: the “but for” and the proximate cause elements.

Upon finding that a doctor has failed to adequately inform the patient of the attendant risks of and alternatives to a medical procedure, the question now is whether the treatment would not have occurred “but for” the doctor’s failure to inform properly. This “but for” relation is established when a reasonably prudent person in the patient’s position would not, if fully informed, have consented to the treatment.

Once the “but for” relation is established, and it is concluded that the treatment would not have taken place, a second inquiry is then directed at whether the injury in fact resulted from the disputed treatment, for there can be no recovery without actual damages to the plaintiff. This is the proximate cause element.

Whether the treatment in question had the effect of producing plaintiff’s injury and whether reasonable men would regard the treatment as the cause of the injury, it must be proven that no fully informed reasonable person would consent to the treatment and that the plaintiff in fact suffered an injury which medically was caused by the treatment.

Unquestionably, it is impossible for a lack of informed consent to cause a physical injury. The parent’s lack of knowledge about the risk of the treatment did not cause that risk to materialize. Rather, it is the administration of an unconsented treatment which may cause injury. Unfortunately, a literal interpretation of the instruction would require the impossible: that the lack of informed consent must proximately cause the blindness.

Given the complexity of the issue of lack of informed consent and the court’s inability to conclude that the ultimate verdict by the jury of the lower court was based on a correct application of the relevant legal principles, the court reverses and remands the case for a new trial, but on such cause of action alone.

For inquiries on legal matters such as the above, consult with Stephen Bilkis & Associates. We give out free legal advice to people who need it for the purpose of being apprised of the demands that a possible lawsuit may bring about. You will be assisted by the best New York Medical Malpractice Lawyers, New York Birth Injury Lawyers, among others.

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