LITIGATING THROUGH THE EYE OF A NEEDLE: A CLAIMS EXAMPLE

Posted: September 21 2015

When an insured acupuncturist met with Patient X for the first time, the patient complained of insomnia and general body aches and pains. The acupuncturist worked at a very large massage clinic, and it was the clinic’s internal procedure to insist that all new patients receive a full explanation as to the nature of and the risks inherent with the proposed treatment. The patient was required to sign a patient acknowledgment and consent form prior to any treatment being performed. The consent form specifically advised the patient that results are not guaranteed, and that risks such as minor bleeding, bruising, pain, nausea, fainting, infection, and perforation of internal organs are possibilities with any acupuncture treatment. The acupuncturist explained the treatment she was proposing, as well as the risks involved, and asked Patient X to sign the consent form. Patient X waved her off and advised he was in a rush and didn’t have time to read and sign the document. He would read it at home and bring it in signed the next time. The insured proceeded to perform the treatment. Patient X returned six more times for treatment, each time failing to bring the consent form, but promising to read it and sign it for the next appointment.

On the last appointment, Patient X brought his girlfriend with him. While the needles were inserted, the Insured had to advise Patient X multiple times to remain prone and not to move, as Patient X kept on moving around while carrying on a heated conversation with his girlfriend. After the needles were removed, Patient X stood up and advised that he felt faint. He then complained of severe chest pain, nausea, and trouble breathing. The Insured immediately called an ambulance. Patient X was diagnosed with a punctured lung and was treated in hospital for 12 days examples of litigation.

He then commenced an action against the insured alleging negligence and seeking $150,000 for pain and suffering, as well as special damages, loss of future income, costs, and interest. The Insured reported the claim to Trisura. Trisura confirmed that coverage was available for this matter, and retained experienced counsel to represent the Insured. During the course of litigation, Patient X maintained the position that the risks inherent with the procedure had never been explained to him, and that he had never seen, nor been asked to sign a consent form. The Insured disagreed. Patient X insisted that he would not have agreed to treatment if he had known all the risks. He also denied having moved at all during treatment, and said that he had not spoken to his girlfriend while the needles were inserted. It therefore became an issue of credibility between the parties.

Given the facts, and in particular, the failure to follow proper clinical procedures and insist on a signed consent form before treatment was even commenced, settlement negotiations commenced to avoid a lengthy trial and a probable finding of liability against the Insured. The matter settled for $42,000. In addition to the settlement amount, the insured’s defense costs were in excess of $20,000. Trisura retained counsel, paid the legal fees, and paid to settle the claim.

What is wrong with our elected officials in Clarksville? We have a city mayor who is threatening to sue the county mayor over a situation involving the E-911 center because there isn't a representative from the city on the E-911 board.

It is truly disturbing that two of our highest elected officials cannot sit down and arrive at a rational and satisfactory solution on this matter. Personally, I do not believe the majority of the city and county residents want our tax dollars being used on something that could and should be resolved in a more civil and professional manner.

And if this lawsuit goes forward, it will cost the taxpayers.

In my opinion, Mayor McMillan is not acting in the best interests of the voters with this action. And if my information is correct, Mayor Durrett should have afforded the City of clarksville the courtesy of having a city representative on the E-911 board since the city does pay into the funding of the E-911 center.

And as if this isn't bad enough, when Mayor McMillan reformed the committee structure, she claimed she wanted diversity. Yet she failed to place a woman into a chair position of at least one of the committees. This latest action reflects there was a personal conflict with one or more of the council members.

While I fully understand there will always be differences of opinions in politics, these differences should always be resolved in a rational and professional manner, and always in the best interests of the voters.

We did not elect people to positions of leadership only to see lawsuits filed and have our tax dollars used in such irresponsible ways. Is it past time to have a consolidated government? Do we truly need two governing bodies in Montgomery County?