Case details

Defense: Reasonable person would have consented to hysterectomy





Result type

Not present

depression, emotional distress, mental, psychiatric, psychological
On Sept. 30, 2011, plaintiff Carmen Jones, 48, a home health care provider, underwent surgery to remove her rectum. Jones initially became a patient of Dr. Vijay Trisal and Dr. Yih-Dar Nien, both surgical oncologists affiliated with City of Hope Medical Group, in April 2010. At the time, Jones had a diagnosis of Stage IV rectal cancer with metastasis to her liver, which was determined to be inoperable. Trisal and Nien decided on a treatment plan of chemotherapy and radiation. If the cancer responded, Jones would undergo surgical removal of a portion of her liver and rectum. During the ensuing year, Jones’ cancer responded to the chemotherapy and radiation treatment, and her inoperable cancer became operable. In June 2011, Trisal and Nien performed a partial liver resection. Jones was then scheduled to undergo a surgical removal of Jones’ rectum on Sept. 30, 2011. The procedure was also performed by Trisal and Nien. Intraoperatively, the surgeons determined that Jones’ uterus had become significantly damaged by her chemotherapy and radiation and that it could not be moved out of the way so that the rectum could be accessed and removed. As a result, the surgeons performed a hysterectomy on Jones. Jones sued Trisal, Nien, and City of Hope Medical Group Inc. Jones alleged that the defendants failed to obtain her informed consent and that the defendants’ actions constituted negligence per se and medical battery. Plaintiff’s counsel contended that, pursuant to Health & Safety Code § 1690, Trisal and Nien were required to obtain Jones’ consent prior to performing the hysterectomy on Sept. 30, 2011. However, counsel contended that prior to the surgery, Jones consented to the removal of her rectum, but had not consented to the possible removal of her uterus. Plaintiff’s counsel argued that when Trisal and Nien found that the uterus was immobile and blocked their surgical access to the rectum, they should have stopped, emerged Jones from anesthesia and obtained her consent to perform the hysterectomy. Counsel argued that the fact the defendants did not stop the procedure was a statutory violation, constituting negligence per se and medical battery. Defense counsel contended that, typically, the uterus can be mobilized out of the way and does not require removal during the type of surgery Jones underwent on Sept. 30, 2011. Counsel contended that, for this reason, Jones was not asked to give consent for the hysterectomy prior to surgery. However, defense counsel contended that, to the surprise of Trisal and Nien during surgery, Jones’ uterus was significantly damaged and could not be removed. Therefore, counsel argued that the hysterectomy was necessary due to unforeseen events intraoperatively and that consent could not be practically obtained in that situation. Defense counsel argued that it made no sense from a medical standpoint to emerge Jones from anesthesia just to obtain her consent to a hysterectomy procedure that any reasonable person would consent to because it would mean the successful completion of her rectal cancer removal surgery. Additionally, counsel argued that Health & Safety Code § 1690 did not apply to this unique situation, but, rather, was intended to apply to a planned hysterectomy on a fertile patient. Thus, defense counsel argued that because Jones was sterile from all of her cancer treatment, any violation of the given statute was excused under the law., Jones underwent an unplanned hysterectomy during the surgery to remove her rectum. Thereafter, she recovered unremarkably from the surgery. Jones claimed she suffers from emotional distress and other psychiatric , including depression, due to the removal of her uterus. Thus, she sought recovery of $500,000 in general damages for her pain and suffering.
Superior Court of Los Angeles County, Torrance, CA

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