Jury decision in medical negligence case could prompt more claims involving consent, attorneys say

A jury in Seattle awarded $8.5 million to a man and his wife last week after the man suffered complications from a surgery at Virginia Mason Medical Center that he claims was performed by someone who he did not authorize to operate on him.

According to attorneys who represented the plaintiff, this decision could open the door to other medical negligence claims at other provider organizations for procedures performed by physicians that the patient did not consent to.

The patient

Matthew Hipps was diagnosed with a life-threatening abdominal tumor in January 2013 and consented to surgery to remove the tumor, which involved placement of a ureteral catheter.

While the surgery successfully removed the tumor, Mr. Hipps suffered from complications post-surgery that required two other major surgeries to reconstruct his penis, according to attorneys representing Mr. Hipps and his wife, Sarah Hipps, MD.

The consent form

The Hipps claim they signed a consent form for one surgeon in particular — Kathleen Kobashi, MD, head of Virginia Mason's urology department — to place the stent during the procedure. But Dr. Kobashi did not show up to the surgery at any point and instead a fellow, Chong Choe, MD, performed the procedure.

"I practiced at Virginia Mason — I knew all the doctors there and selected only the best for my husband, trying to do the right thing for him," Dr. Hipps said in a statement. "We made it crystal clear we did not want Dr. Choe operating on him, but the hospital violated our trust and hurt my husband in the most personal and permanent way."

However, the consent form presented to the jury showed "Kobashi/Choe" was authorized to perform the surgery, according to The Seattle Times. The Hipps say Dr. Choe's name was added to the form later.

Regardless, the court instructed the jury that "Virginia Mason Medical Center's consent form — 'and whomever [the physician] designates as his/her assistants' — does not allow another physician to be substituted for the physician whose name appears on the form."

The decision

The Hipps brought two claims against the hospital. One was medical battery, the unconsented touching of a patient. This charge stemmed from the consent form, which the Hipps allege was altered, according to the Seattle Times. The other charge was medical negligence, a breach of the standard of care based on the opinions of medical experts.

"The jury rejected the Hipps' claim of medical battery and returned a verdict in favor of Virginia Mason on that claim," according to a hospital statement emailed to Becker's. "The jury concluded that Mr. Hipps gave consent to Dr. Chong Choe to perform the procedure."

The jury did, however, rule in favor of the Hipps on the medical negligence claim and awarded $6 million to Mr. Hipps and $2.5 million to Dr. Hipps.

"It's absolutely heinous to set a patient's expectations about one doctor, and then swap out the surgeons once the patient goes under anesthesia," Michael S. Wampold of Peterson Wampold Rosato Feldman Luna, the Hipps' attorney, said in a statement.

According to the hospital's statement, Virginia Mason "strongly disagree[s] with both the jury's decision against our organization and with the plaintiff attorney's misleading, post-verdict portrayal of the facts in this case. We will assess all our options and potential next steps."

Virginia Mason's full statement

"Matthew Hipps was diagnosed with a life-threatening desmoid tumor in January 2013. He consented to a surgery to remove the tumor and to a procedure to place a ureteral catheter to protect his kidney during the surgery. The surgery to remove the tumor was successful. Almost two months later, Mr. Hipps experienced a urethral complication.

Matthew and Sarah Hipps brought two claims against Virginia Mason: medical battery and medical negligence. Medical battery is the unconsented touching of a patient. Medical negligence is a breach of the standard of care based on the opinions of medical experts. 

The jury rejected the Hipps' claim of medical battery and returned a verdict in favor of Virginia Mason on that claim. The jury concluded that Mr. Hipps gave consent to Dr. Chong Choe to perform the procedure. Dr. Choe, a United States Naval Officer, completed a five-year residency in urology prior to coming to Virginia Mason for special advanced training in female pelvic floor reconstruction surgery. Dr. Choe had performed hundreds of cystoscopies (a procedure necessary to place a ureteral catheter) prior to performing the procedure on Mr. Hipps. The jury did return a verdict in favor of the Hipps on the medical negligence claim and awarded damages to them. We believe the evidence presented demonstrated that Virginia Mason did meet the standard of care.

At Virginia Mason, we are committed to providing the highest quality and safest care for every patient, every day. We strongly disagree with both the jury's decision against our organization and with the plaintiff attorney’s misleading, post-verdict portrayal of the facts in this case. We will assess all our options and potential next steps."

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