Lack of Consent Form No Problem in Lack of Informed Consent Claim
Mr. Jakub successfully defended a NYC pain management physician during a two-week jury trial. The patient alleged that the physician administered a trigger point injection without her informed consent and that during the injection he punctured her lung, causing a pneumothorax.
During trial, Mr. Jakub conceded that the patient was not provided with an informed consent form to sign before the procedure and further acknowledged that the patient was not advised that a pneumothorax was a risk of the injection. Mr. Jakub instead argued that the pneumothorax was a known and accepted, yet rare, complication of a properly-performed trigger point injection which the physician was not required to disclose to the patient. The physician testified that he obtained a verbal consent from the patient after advising her that the injection could cause pain, bleeding and/or an infection.
Several hours after the injection was administered, the patient was diagnosed with a pneumothorax which was surgically treated through the placement of a chest tube. The jury was asked to determine whether the physician obtained an informed consent from the patient prior to the administration of the trigger point injection, despite the absence of a signed consent form and despite a concession from the physician that the possibility of a pneumothorax was not disclosed.
After several hours of deliberations, the jury concluded that Mr. Jakub’s client provided the patient with sufficient information before the procedure and that he was not liable for her injuries or claimed damages.
July 31, 2104, Supreme Court, New York County, Justice Joan B. Lobis (Index #805120/12)