Informed Consent

Over $1M Award for Colonoscopy Injury Due to Lack of Informed Consent

Informed ConsentAn elderly man recently received an award from a Cook County jury in the amount of $1,011,949.00 for severe injuries he sustained during a colonoscopy procedure, chiefly because it was determined that he could not have given informed consent. The plaintiff filed suit against Dr. Manuel Alva and his employer Medicor Partners S.C. in 2014, alleging one count of professional negligence and one count of medical battery.

Insufficient Information

In January 2013, 89-year-old Ezequiel Flores was admitted to Berwyn’s MacNeal Hospital to receive treatment for swelling in his legs. A CT scan of Mr. Flores’s abdomen raised concern that he could be suffering from either diverticulitis (an inflammation of the digestive tract) or colon cancer. After viewing Mr. Flores’s CT scan results, Dr. Alva ordered a colonoscopy. According to the lawsuit, Mr. Flores initially refused the colonoscopy, but Dr. Alva convinced him, stating that the procedure would be “good for him” and would “clean him out.”

Mr. Flores’s attorney alleged, however, that Dr. Alva failed to inform his patient about the risks potentially associated with undergoing a colonoscopy and that he did not provide Mr. Flores with any alternative treatments. For example, Dr. Alva could have taken another CT scan when the swelling subsided or performed an “incomplete” colonoscopy, which would only have explored the area in question instead of the entire colon. In failing to do so, the attorney argued, Dr. Alva provided Mr. Flores with insufficient information about his options, such that he could not have given what is known as “informed consent” to the procedure in question.

Informed Consent

In non-emergency medical situations, Illinois law requires that a doctor must obtain a patient’s informed consent before performing surgery, operative procedures, or significant healthcare interventions, usually in writing. In order for a patient to give informed consent, a medical provider must share with the patient the diagnosis, if available, all of the potential risks and benefits of any given procedure, any alternative procedures or treatments that may be attempted in place of the proposed procedure, the risks and benefits of those alternative procedures or treatments, and any other facts that a reasonable, prudent person would consider significant in deciding whether to undergo the procedure.

The medical provider also needs to ensure that the patient understands what he or she is hearing. Only when the patient has a clear understanding and appreciation of the facts, consequences, and implications of a procedure can he or she be said to be in a position to give “informed consent” to that procedure – which, as Mr. Flores’s attorney alleged, was not the case in this situation.

Dangerous Complications

Mr. Flores claimed that during the colonoscopy Dr. Alva perforated his colon. This perforation contaminated Mr. Flores’s abdomen with fecal matter, which sent him into life-threatening septic shock. Hours after the first procedure, Mr. Flores underwent emergency reparative abdominal surgery. He subsequently required a six-week stay in the hospital, during which his abdomen had to remain open so that it could heal from the inside.

Professional Negligence

Mr. Flores’s attorney argued that navigating through the various “bends” in the colon necessarily placed more pressure on certain parts of it. Because Dr. Alva ordered a full colonoscopy, rather than an “incomplete” colonoscopy or some non-invasive procedure, which Mr. Flores contended were not proposed to him as alternatives, more pressure was placed on the lower colon, resulting in perforation, sepsis, and subsequent extensive medical correction.

To further bolster the plaintiff’s case, the lawsuit also alleged that Dr. Alva admitted to a member of Mr. Flores’s family that he did not want the procedure performed and that the doctor himself said that he should not have performed the colonoscopy.

In countering the plaintiff’s position, the defense contended that there was no alternative to performing the procedure in order to ascertain and treat Mr. Flores’s symptoms and that any reasonable person in his condition would have consented to undergo a colonoscopy.

The jury found in favor of Mr. Flores on the charge of professional negligence, though it cleared the defendants on the charge of medical battery. In its decision, the jury awarded Mr. Flores $201,949.00 for medical expenses, $60,000.00 for disfigurement, $500,000.00 for past and future pain and suffering, and $250,000.00 for past and future loss of a normal life.

Medical Malpractice Litigation

Illinois law allows you to recover financial compensation in cases of surgical errors and other forms of medical malpractice. If you believe you have suffered severe bodily injury because of medical malpractice, please contact GWC today to schedule a free consultation with one of our attorneys. Call (312) 464-1234 or click here to chat with one of our representatives.