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CHD and the Law: Medical Malpractice Part I

Sep 20

Posted by: ACHA
9/20/2013 9:46 AM  RssIcon

By Michael Pernick

This blog series will feature a story involving congenital heart disease and the law. The blog posts may discuss contemporary or historical court decisions, laws or regulations, or other legal issues that relate to CHD. These posts are purely for entertainment and educational purposes and are not legal advice. Any opinions expressed in this series of posts are solely those of the author and do not represent the Adult Congenital Heart Association. The names of the parties involved in this matter have been altered.

Medical malpractice is a controversial issue. I’m not going to wade into this debate—instead, I will share two stories (in two separate blog posts) involving children born with CHD, each of which resulted in a medical malpractice lawsuit. My goal is not to pass judgment on whether these cases where rightly or wrongly decided, but instead use these cases to help answer a simple question: What does it generally take to win a malpractice suit?

Timothy Conroy was born in January 2001 with a single ventricle heart defect called hypoplastic left heart syndrome. The standard treatment requires three surgeries. Timothy’s first two went well. For the third operation, instead of doing the standard Fontan, his physician, Dr. Myers, got special approval to use cardiac catheterization and the placement of a stent (not yet approved by the FDA), a less invasive procedure.

Soon after the last surgery, Timothy developed serious symptoms (pleural effusions and ascites). The stent was then removed by a new doctor and the severe symptoms began to subside. The Fontan was then performed and Timothy had a relatively rapid recovery. According to the court documents, he has been doing well since.

Timothy’s family sued Dr. Myers for medical malpractice.

To be successful in most states, a malpractice suit must meet three criteria: (1) There must be a particular standard of care that is accepted by the medical community as the proper treatment for that specific condition. (2) The doctor must have deviated from that standard of care in some way. (3) The doctor’s deviation must have been a cause of the alleged injury.

In this case, the first and second criteria were met. Dr. Myers chose not to follow that accepted standard treatment (the Fontan), and instead used an experimental procedure and a stent that did not have FDA approval.

The Conroy’s case failed because of the third criteria. In order to satisfy this part of the test, the Conroys needed to show that the procedure used by Dr. Myers was the “but for” cause of the symptoms that Timothy suffered after the procedure. In other words, they needed to show (1) that the stent caused the severe symptoms (pleural effusions and ascites) AND (2) that if Dr. Myers used the accepted procedure (the Fontan), those symptoms would not have occurred.

The Conroys were able to show that the stent caused those symptoms—but were not able to prove the second part. Since pleural effusions and ascites are also common side effects of the Fontan, they were unable to show that Timothy was any worse because of the alternative operation, since he may have suffered the same symptoms had the standard procedure been used.

The court accordingly found that Dr. Myers did not commit medical malpractice. Next time, I will share with you a heartbreaking story of a child with CHD whose doctor did commit medical malpractice.

The citation to the case discussed in this blog post is T.C. ex rel. C.C. v. A.I. Dupont Hosp. For Children, 368 F. App'x 285 (3d Cir. 2010).

Michael Pernick was born with tetralogy of Fallot and grew up on Long Island, New York. He is currently a second-year student at NYU School of Law. He attended college at Wesleyan University and worked for several years on political campaigns and issue advocacy campaigns in New York, Connecticut, and Boston.

Copyright ©2013 ACHA

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2 comment(s) so far...


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Re: CHD and the Law: Medical Malpractice Part I

Hey Michael, I thought I'd leave a note here because I am a complex chd heart patient but also a young lawyer who went to a small liberal arts college back in the day. If you'd like to connect, feel free to email me at the address provided.

Sincerely,

Lin

By Lin on   9/23/2013 8:22 AM
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Re: CHD and the Law: Medical Malpractice Part I

Ah, darn, it says email only used to show my gravatar -- I thought it would send it to you. Here it is: lhendler@gmail.com

Cheers,

Lin

By Lin on   9/23/2013 8:22 AM

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