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Martha was to undergo an MRI to investigate a complaint of back injury. She

advised the MRI center's employees by phone the day before the procedure that

she would consent to administration only of either morphine or meperidine.

The center advised her that their practice was to administer fentanyl.

Martha said she would not accept an injection of fentanyl but would accept MS or

meperidine.

The next day, upon arrival at the MRI center and while being prepped, she

asked Nurse Bob what drug he was going to use, and he advised fentanyl. Martha

once again advised Nurse Bob that she would not accept fentanyl. Later,

after (supposedly) discussing the matter with Martha's physician, Nurse Bob

advised Martha that he would administer morphine. However, instead he

administered

fentanyl.

Martha claims that as a result of administration of fentanyl she suffered

serious complications, including severe headache, projectile vomiting, breathing

difficulties, post-traumatic stress disorder, and vocal cord dysfunction.

She sued the MRI facility.

What legal issues does this case present? If this involved prehospital

care, would the issues be the same?

Gene Gandy, JD, LP

**************

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Renny,

I would have said the same thing, and I would have been wrong IN THIS

SPECIFIC CASE. This is an Arizona case, so let's all remember that law changes

from

jurisdiction to jurisdiction, but in this case, Duncan v. sdale Medical

Imaging, Ltd., et al, No. CV-02-0191-PR, Arizona Supreme Court, 2002, the

Court distinguished between " lack of consent " and " lack of informed consent. "

In this case, the patient was found to have consented to administration of

either morphine or Demerol, but not to fentanyl. Therefore, there was NO

consent, and therefore the nurse's actions were battery, not malpractice.

On the other hand, if Martha's consent were to the administration of an

analgesic, but the risks were not explained to her, giving her the opportunity

to

speak up about her problems with synthetic opioids, the failure to warn would

amount to negligence, thereby allowing an action in malpractice.

But since Martha did not consent to administration of fentanyl, and was

misled into believing that the injection she was consenting to was not fentanyl,

a

material misrepresentation of fact, then her cause of action is in battery.

The big difference in the two is that in a battery case, Martha is not

required to present expert evidence to support her claim.

Caution: This is an Arizona case, and it may not apply in all

jurisdictions.

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This is malpractice, regardless if the harm claimed is real or not.

It is a violation of patients rights to do any

procedure/treatment/medicine without patients consent. This assumes

they are legally competent.

This would also apply if patient were not legally competent but had

prior to event that makes them unable to decide filled out a durable

power of attorney or living will with specific medical direction.

Any patient has the right to pick and choose what treatment they will

accept and your disregarding it would be against all moral and

ethical aspects.

In hospital or prehospital we still must respect patients rights to

determine what we do to them.

Prehospital lets say protocol says all fall patients must be

backboarded and c-collared. Patient says no. Would you say after

first trying to reason with them, I can not take you to the hospital

if you refuse these spinal precautions? Hopefully not. Hopefully

you would have them sign a refusal of specific treatment or refusal

of all treatment but accepting transport. Had you denied all other

care and transport to patient for them refusing a treatment would be

equal to malpractice, patient abandoment if you left them there.

Prehospital it is easy to get locked into protocol says I must do

this or that and we forget patients have the right to choose what

they will allow regardless of our protocols or opinions.

Just my worthless rambling thoughts on the subject.

Renny Spencer

EMT-I

Paramedic Student

>

> Martha was to undergo an MRI to investigate a complaint of back

injury. She

> advised the MRI center's employees by phone the day before the

procedure that

> she would consent to administration only of either morphine or

meperidine.

> The center advised her that their practice was to administer

fentanyl.

> Martha said she would not accept an injection of fentanyl but would

accept MS or

> meperidine.

>

> The next day, upon arrival at the MRI center and while being

prepped, she

> asked Nurse Bob what drug he was going to use, and he advised

fentanyl. Martha

> once again advised Nurse Bob that she would not accept fentanyl.

Later,

> after (supposedly) discussing the matter with Martha's physician,

Nurse Bob

> advised Martha that he would administer morphine. However,

instead he administered

> fentanyl.

>

> Martha claims that as a result of administration of fentanyl she

suffered

> serious complications, including severe headache, projectile

vomiting, breathing

> difficulties, post-traumatic stress disorder, and vocal cord

dysfunction.

>

> She sued the MRI facility.

>

> What legal issues does this case present? If this involved

prehospital

> care, would the issues be the same?

>

> Gene Gandy, JD, LP

>

>

> **************

> Get trade secrets for amazing burgers. Watch

> " Cooking with Tyler Florence " on AOL Food.

>

> (http://food.aol.com/tyler-florence?video=4 & amp;?

NCID=aolfod00030000000002)

>

>

>

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Gene,

Battery makes sense. It was treatment done against her will. So

would the guilty party also be facing jail time besides lawsuit?

Renny

PS Darn I was going to claim you were my attorney till I saw your

disclaimer. ;)

>

> Renny,

>

> I would have said the same thing, and I would have been wrong IN

THIS

> SPECIFIC CASE. This is an Arizona case, so let's all remember

that law changes from

> jurisdiction to jurisdiction, but in this case, Duncan v.

sdale Medical

> Imaging, Ltd., et al, No. CV-02-0191-PR, Arizona Supreme Court,

2002, the

> Court distinguished between " lack of consent " and " lack of informed

consent. "

>

> In this case, the patient was found to have consented to

administration of

> either morphine or Demerol, but not to fentanyl. Therefore, there

was NO

> consent, and therefore the nurse's actions were battery, not

malpractice.

>

> On the other hand, if Martha's consent were to the administration

of an

> analgesic, but the risks were not explained to her, giving her the

opportunity to

> speak up about her problems with synthetic opioids, the failure to

warn would

> amount to negligence, thereby allowing an action in malpractice.

>

> But since Martha did not consent to administration of fentanyl, and

was

> misled into believing that the injection she was consenting to was

not fentanyl, a

> material misrepresentation of fact, then her cause of action is in

battery.

>

> The big difference in the two is that in a battery case, Martha is

not

> required to present expert evidence to support her claim.

>

> Caution: This is an Arizona case, and it may not apply in all

> jurisdictions.

>

>

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I could see a possible criminal assault case, yes. However, apparently it

did not happen in this incident.

G

>

> Gene,

> Battery makes sense. It was treatment done against her will. So

> would the guilty party also be facing jail time besides lawsuit?

> Renny

>

> PS Darn I was going to claim you were my attorney till I saw your

> disclaimer. ;)

>

> --- In texasems-l@yahoogrotexasem, wegandy1938@, wegandy1

> >

> > Renny,

> >

> > I would have said the same thing, and I would have been wrong IN

> THIS

> > SPECIFIC CASE. This is an Arizona case, so let's all remember

> that law changes from

> > jurisdiction to jurisdiction, but in this case, Duncan v.

> sdale Medical

> > Imaging, Ltd., et al, No. CV-02-0191-PR, Arizona Supreme Court,

> 2002, the

> > Court distinguished between " lack of consent " and " lack of informed

> consent. "

> >

> > In this case, the patient was found to have consented to

> administration of

> > either morphine or Demerol, but not to fentanyl. Therefore, there

> was NO

> > consent, and therefore the nurse's actions were battery, not

> malpractice.

> >

> > On the other hand, if Martha's consent were to the administration

> of an

> > analgesic, but the risks were not explained to her, giving her the

> opportunity to

> > speak up about her problems with synthetic opioids, the failure to

> warn would

> > amount to negligence, thereby allowing an action in malpractice.

> >

> > But since Martha did not consent to administration of fentanyl, and

> was

> > misled into believing that the injection she was consenting to was

> not fentanyl, a

> > material misrepresentation of fact, then her cause of action is in

> battery.

> >

> > The big difference in the two is that in a battery case, Martha is

> not

> > required to present expert evidence to support her claim.

> >

> > Caution: This is an Arizona case, and it may not apply in all

> > jurisdictions.

> >

> >

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