Plaintiff v. Doctor, et al. (No. CIV-94-1600-T USDC WD Oklahoma)
Plaintiff v. Doctor offers a novel and effective use of
expert testimony for the defense of medical malpractice cases. The defense
introduced expert forensic psychiatric testimony with respect to:
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medical decision making under conditions of uncertainty;
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the distinction between informed consent and informed choice;
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motivation for memory revision.
The plaintiff was a young woman suffering from chronic pelvic pain. After
a period of unsuccessful attempts to control the pain with medications,
the defendant obstetrician/gynecologist performed a hysterectomy.
The plaintiff's and defendant's testimony differed as to how this decision
was reached and whether it reflected the plaintiff's wishes. In the course
of the surgery an embryo of one month's gestation was discovered and,
as a necessary consequence of the surgery, aborted.
The plaintiff subsequently brought an action for medical malpractice,
charging the defendant with performing an unwanted procedure, causing
an unwanted abortion, and sexual misconduct. At the request of the defense,
Harold J. Bursztajn, M.D. performed a court-ordered Rule 35 examination
of the plaintiff. Subsequently, the charge of sexual misconduct was dropped.
However, the case went to trial on the other two charges. A unanimous
jury verdict for the defense was returned.
Dr. Bursztajn testified for the defense as an expert witness in forensic
psychiatry, medical decision making, and informed consent. His testimony
included:
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a constructive use of decision analysis to retrace the decision-making
process engaged in by the physician and patient and thereby to
counter the hindsight bias introduced by the plaintiff;
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a forensic analysis of the informed-consent process engaged in by
the physician and patient, which provided a psychological autopsy
of the decision.
Specifically, Dr. Bursztajn testified:
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that the physician and patient had appropriately considered the risks
and benefits of four possible courses of action: medical treatment,
psychiatric treatment, surgery, and no treatment;
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that the patient had been competent to give informed consent and
had in fact done so;
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that the physician's actions met the standard of care in the areas
of medical decision making and informed consent and were responsive
to the patient's wishes as expressed at the time;
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that a referral to a psychiatrist for psychogenic pain, which the
patient in retrospect claimed to have sought, would not likely
have been productive in view of the patient's defensive concealment
of important aspects of her medical and personal history;
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that, as a result of early developmental trauma, the patient had
grown up feeling victimized. As a consequence, she had difficulty
taking responsibility (which she equated with taking blame).
Thus, although there was evidence that she had made an informed
choice, she subsequently sought to disavow the choice she had
made and automatically revised her memory of the informed consent
process to fit her long-standing secret identity as a victim.