Not enough sedation during colonoscopy in California. What happened next?

Have you ever struggled to access crucial evidence in a malpractice case in California due to confidentiality laws? This is a common concern, as many encounter obstacles with hospital peer review records. Understanding the law is key to navigating these issues. This article will guide you through a pivotal court decision that can illuminate the path forward.

Situation

Situation Example

Let’s imagine a sunny afternoon in California. Ms. Fox, a friendly woman who loves gardening, went to a hospital for a colonoscopy. This procedure was done by Dr. Kramer and Dr. Kushlan, who are both experienced doctors. The procedure would be under “conscious sedation,” meaning Ms. Fox would be awake but not feel much pain. During the procedure, Ms. Fox felt some pain and asked the doctors to stop for a moment. The doctors paused and then finished the procedure. Later, Ms. Fox felt she was not treated properly and thought the sedation wasn’t enough. So, she and her husband, Dr. Fox, decided to sue the doctors and the hospital, saying they didn’t get proper consent from her and she was not sedated well enough.

Judgment

The court decided in favor of the doctors, Dr. Kramer and Dr. Kushlan, and the hospital. They found that the peer review materials from the hospital, which were important to the case, were rightfully kept secret. The court said that the materials could not be used in the trial due to confidentiality rules, specifically citing California Evidence Code Section 1157 (California No. S077861). The jury concluded that the doctors did not act negligently.

Solution

Immediate Actions to Take

If you find yourself in a situation like Ms. Fox, the first thing to do is gather all the information you can about what happened. Write down everything you remember about the procedure, including how you felt and what the doctors said. If you have any paperwork or consent forms you signed, keep those safe. It’s also a good idea to talk to a lawyer who knows about medical cases. They can help you understand what to do next.

Filing a Lawsuit

When you decide to file a lawsuit, your lawyer will help you draft a complaint. This is a document that explains what happened and why you think the doctors were wrong. The complaint will be filed in court, and the hospital and doctors will get a copy. After that, the legal process begins, which includes gathering more evidence and preparing for trial. Sometimes, cases like these can take a long time, so it’s important to be patient.

Negotiation and Settlement Strategies

Before going to trial, you might consider negotiating a settlement. This means you and the doctors could agree on a solution without having to go to court. Your lawyer can help you with this process. They will talk to the hospital’s lawyers to see if you can reach an agreement. Sometimes, settlements can be a good way to avoid a long and expensive trial. It’s important to be open to this option and discuss it with your lawyer.

FAQ

What is Peer Review?

Peer review is when doctors check each other’s work to make sure they’re doing a good job. It’s like when teachers check each other’s lesson plans to make sure they’re teaching correctly.

What is Section 1157?

Section 1157 is a law in California that keeps the peer review process secret. This means the details of how doctors review each other’s work can’t be used in court. It’s meant to help doctors speak openly about how to get better at their jobs.

What is Section 1040?

Section 1040 is another California law that allows the government to keep certain information secret if sharing it is not in the public’s interest. It’s like keeping a secret if telling it could cause more harm than good.

What is Section 1151?

Section 1151 says that if someone fixes something after an accident to make it safer, that can’t be used as proof they did something wrong in the first place. It’s meant to encourage people to make things safer without worrying about getting in trouble.

Who is Dr. Schnitzer?

Dr. Schnitzer is an investigator who worked for the California Department of Health Services. He looked into the peer review records for this case, but his findings couldn’t be used in court because of confidentiality rules.

What was the Verdict?

The verdict was in favor of the hospital and the doctors, meaning the jury decided they didn’t do anything wrong during Ms. Fox’s procedure.

What is Conscious Sedation?

Conscious sedation is a way to make a patient very relaxed and not feel much pain during a medical procedure, but they’re still awake. It’s like being very sleepy and calm.

What was Excluded?

In this case, the court didn’t allow Dr. Schnitzer’s testimony and his preliminary report to be used because they were based on private hospital peer review materials.

What is Malpractice?

Malpractice is when a doctor or medical professional does something wrong or doesn’t do their job correctly, which ends up harming a patient. It’s like when someone makes a mistake at work, but it has serious consequences.

Can Reports be Subpoenaed?

Reports based on peer review materials can’t be easily subpoenaed because they are protected by laws like Section 1157 and 1040. This keeps them confidential to protect the peer review process.