Can Med-Mal Caps Be Bypassed?

A second consent form indicating agreement to a blood transfusion was signed at 9:45 p.m., just before Cordero entered surgery, but it is signed by a witness, not by the plaintiff, with a notation that reads “verbal consent.” This second consent form is the basis for the charge that Delray falsified records, as the plaintiff disputes that he ever gave his verbal consent for blood transfusion. While in surgery, Cordero was administered 250 milliliters of blood.

Florida courts have consistently upheld the rights of adult patients to refuse medical treatments on religious grounds. In this instance, Cordero asserted claims for battery and falsification of records. The battery claim is framed as a “trespass against his body.” There are no state caps on civil damages for battery. Cordero's attorney, George Bender, a partner at Bender Bender & Chandler in Coral Gables, FL, notes that the battery charge is based on his client's complete lack of consent because, as a devout Jehovah's Witness, transfusion is unacceptable.

Malpractice Or Not?

Historically, claims involving failure to obtain informed consent have been framed as medical malpractice claims, but Cordero's claim is different in that he asserts that he not only did not give consent, he specifically forbad his caregivers to do the very thing they did. Thus, although a court might look beyond the pleadings to determine that the substance of the claims sound in medical malpractice — and are therefore subject to the statutory $500,000 noneconomic damage cap on medical malpractice claims — Cordero's suit may pass muster as a pure battery claim. As a Jehovah's Witness, Cordero sees the Bible's prohibition against eating blood to include a prohibition against receiving blood intravenously. He experienced no actual medical harm due to the transfusion, only the mental harm (and, Cordero might argue, harm to his soul) caused by the unwanted “touching.”

If his case is treated as a medical malpractice action, Cordero could well lack any remedy for the hospital personnel's actions because there can generally be no cause of action for medical malpractice due to failure to obtain informed consent if there has been no medical harm as a consequence of that failure. Such an outcome would appear unjust, as Cordero surely has a legitimate injury, even if it is arguably only a psychic one. If the battery charge stands, no proof of physical harm will be necessary. Only contact that is unwanted and not consented to must be proved.

On the other hand, if lack of informed consent is ordinarily treated as medical malpractice, then lack of any consent should arguably be treated in the same manner. After all, the provision of medical treatment, whether sound or not, is not generally accomplished with the intent to harm or humiliate the patient. Typically, a charge of battery will not lie if there was no malicious intent on the part of the perpetrator. For example, shoving ones shoulder into another person's shoulder during an argument could be considered battery, but two people who bump shoulders while getting out of a crowded train would not be guilty of that crime.

Overriding the patient's decision not to consent to a medically recommended treatment could be considered a violation of the patient's placement of trust in his caregivers, which is very similar to what occurs when a patient is asked to consent to treatment without first being provided full information on the possible consequences. The omission of vital information violates of the trust the patient must place in the medical professional.

The Florida courts will undoubtedly be grappling with this case for some time, as whichever decision is reached is bound to be appealed. It will be interesting to see whether, in the long run, Cordero's complaint is treated as a medical malpractice claim or as a battery claim, and whether or not he has found one way around Florida's medical malpractice non-economic damage cap.

As more and more states across the nation impose statutory caps on damages for non-economic injuries in medical malpractice cases, plaintiffs and their attorneys are seeing their options for compensation diminished. Attorneys are looking for ways to best help their injured clients, such as hurriedly filing claims before the imposition date of statutory caps and framing their cases as something other than medical malpractice. One such case was recently filed in Florida, in Palm Beach Circuit Court. The plaintiff, Julio Cordero, brought suit against the hospital at which he had surgery following a car accident.

The gist of the plaintiff's suit is this: As a Jehovah's Witness, Cordero is religiously opposed to blood transfusions and claims he refused to have one on religious grounds. Yet, at the hospital, Delray Medical Center, owned by hospital chain Tenet Healthcare Corp., plaintiff was administered a transfusion during his operation.

Cordero came to the hospital as the result of a highway accident. He was driving on Interstate 95 in May 2000 when his car broke down. While standing beside the broken-down car, he was hit by another car, the impact of which broke both his legs. Emergency personnel took him to Delray for treatment. At the medical center, Cordero alleges he was fully awake and lucid and that he told several hospital employees not to give him a blood transfusion. Hospital records seem to confirm his assertion that he was fully conscious, as he signed the consent for anesthesia, and tests given to Cordero on six occasions before he entered surgery indicated he was highly alert.

A second consent form indicating agreement to a blood transfusion was signed at 9:45 p.m., just before Cordero entered surgery, but it is signed by a witness, not by the plaintiff, with a notation that reads “verbal consent.” This second consent form is the basis for the charge that Delray falsified records, as the plaintiff disputes that he ever gave his verbal consent for blood transfusion. While in surgery, Cordero was administered 250 milliliters of blood.

Florida courts have consistently upheld the rights of adult patients to refuse medical treatments on religious grounds. In this instance, Cordero asserted claims for battery and falsification of records. The battery claim is framed as a “trespass against his body.” There are no state caps on civil damages for battery. Cordero's attorney, George Bender, a partner at Bender Bender & Chandler in Coral Gables, FL, notes that the battery charge is based on his client's complete lack of consent because, as a devout Jehovah's Witness, transfusion is unacceptable.

Malpractice Or Not?

Historically, claims involving failure to obtain informed consent have been framed as medical malpractice claims, but Cordero's claim is different in that he asserts that he not only did not give consent, he specifically forbad his caregivers to do the very thing they did. Thus, although a court might look beyond the pleadings to determine that the substance of the claims sound in medical malpractice — and are therefore subject to the statutory $500,000 noneconomic damage cap on medical malpractice claims — Cordero's suit may pass muster as a pure battery claim. As a Jehovah's Witness, Cordero sees the Bible's prohibition against eating blood to include a prohibition against receiving blood intravenously. He experienced no actual medical harm due to the transfusion, only the mental harm (and, Cordero might argue, harm to his soul) caused by the unwanted “touching.”

If his case is treated as a medical malpractice action, Cordero could well lack any remedy for the hospital personnel's actions because there can generally be no cause of action for medical malpractice due to failure to obtain informed consent if there has been no medical harm as a consequence of that failure. Such an outcome would appear unjust, as Cordero surely has a legitimate injury, even if it is arguably only a psychic one. If the battery charge stands, no proof of physical harm will be necessary. Only contact that is unwanted and not consented to must be proved.

On the other hand, if lack of informed consent is ordinarily treated as medical malpractice, then lack of any consent should arguably be treated in the same manner. After all, the provision of medical treatment, whether sound or not, is not generally accomplished with the intent to harm or humiliate the patient. Typically, a charge of battery will not lie if there was no malicious intent on the part of the perpetrator. For example, shoving ones shoulder into another person's shoulder during an argument could be considered battery, but two people who bump shoulders while getting out of a crowded train would not be guilty of that crime.

Overriding the patient's decision not to consent to a medically recommended treatment could be considered a violation of the patient's placement of trust in his caregivers, which is very similar to what occurs when a patient is asked to consent to treatment without first being provided full information on the possible consequences. The omission of vital information violates of the trust the patient must place in the medical professional.

The Florida courts will undoubtedly be grappling with this case for some time, as whichever decision is reached is bound to be appealed. It will be interesting to see whether, in the long run, Cordero's complaint is treated as a medical malpractice claim or as a battery claim, and whether or not he has found one way around Florida's medical malpractice non-economic damage cap.