She is really funny.

She is smart. She is sassy. She is aggressive and speaks her mind.

I have seen Joan Rivers perform many times including at the Concord Hotel in Kiamesha Lake in the 80s, and at marketing seminar called Glazer Kennedy Insider's Circle speaking to 1000 smart entrepreneurs as well as seeing her doing standup.

I was saddened to learn the other day that she had a surgical procedure in an endoscopy suite and either suffered respiratory arrest or cardiac arrest. The news reports do not indicate exactly how she experienced this unfortunate event.

The news stories indicate that she was having some trouble with her voice recently and was scheduled to have some type of surgical procedure with an ear, nose and throat doctor, known as an otolaryngologist. It's also not clear from the news reports whether she suffered respiratory or cardiac arrest prior to the procedure, during the procedure or after the procedure.

Ambulance called...

What is reported is that an ambulance was called to the endoscopy facility and she was rushed in cardiac arrest to Mount Sinai medical Center here in New York City. She apparently remains on life support in an induced coma.

There are also indications that the doctors are unsure about what type of permanent problems she will have coming out of the coma or even whether she will survive being weaned off the life-support respirator.

Daily News reports...

While picking up bagels this morning I had a chance to glance at the daily news the reported that Joan Rivers' daughter, Melissa, was privately furious and anguished about the fact that this surgical procedure, which was supposed to be routine, was botched. Whether that's true or not, we don't know.

However, that is typically how most injured victims and their families begin to think about bringing a lawsuit.

It's starts with anger...

It typically starts with anger. Then frustration. Then the victim and family wonders why they're not getting their questions answered.

The doctors are typically evasive. The nurses tend not to give a straight answer.

You cannot understand how something like this could happen. That prompts the fear, anger and frustration typically felt by injured victims and their family members. It describes exactly what Melissa Rivers was experiencing, according to the Daily News.

Melissa Rivers voice her thoughts about bringing a lawsuit...

It's only because Melissa voiced her thoughts in the newspaper about bringing a lawsuit as a result of a “botched surgical procedure” did I decide to write this informative article.

I'm sure many people, herself included, are wondering what's involved in determining whether or not there is or is not a valid case.

How to determine if there's a valid medical malpractice case...

In order to evaluate whether there has been medical carelessness that resulted in injury, it's necessary to do a full and complete investigation.

Briefly, we must show that we are more likely right that wrong that the doctor violated the basic standards of medical care. We also need to show that those violations resulted in injury. We must also show that the injury is significant and/or permanent.

Importantly, we must have a medical expert confirm each and every one of those elements before we can go ahead and begin a lawsuit seeking compensation for the harms and injuries that she suffered.

Her future is currently uncertain...

Since Joan Rivers is still hospitalized and her condition and her future remain uncertain, the extent of her injuries, also known as damages, are uncertain at this point. Hopefully, she will make a full recovery and be back to normal. However, if she experienced some type of significant brain injury or, God forbid, she dies, the question becomes whether all those injuries are directly related to whatever may have been done wrong.

You should know that simply because someone suffers a complication during a surgical procedure does not in and of itself mean that there was medical wrongdoing. It can, but then again it might not. That's why it's critical to thoroughly evaluate the medical records and have them reviewed by a qualified medical expert.

In this instance, we don't know, based upon the published news reports exactly what procedure she had.

We don't know whether she was predisposed to having a complication. We don't know what her medical history was that might have affected or impaired her ability to handle a surgical procedure or the anesthetic sedation that was used. We don't know if there was an anesthetic overdose. We don't know if she might have eaten something that caused her to vomit and then inhale those contents into her lungs. Medically, that is known as aspiration pneumonia.

From the public standpoint, there is much we do not know.

Obviously, her family and her doctors have much more insider information than we do. That is to be expected at this point.

When evaluating a medical negligence claim like this one, it's always important to determine whether she was a candidate to have this procedure. Many doctors choose to perform minimally invasive surgical procedures in their ambulatory surgery facilities since they tend to be more cost-effective and convenient for both patient and doctor.

However, there are instances where an ambulatory surgery facility has been ill-equipped to deal with medical emergencies that arise during these minimally invasive surgical procedures. Crash carts have gone missing. Emergency cardiac medications are nowhere to be found. There have been instances where the personnel at the surgical facility did not know how to use emergency equipment in order to save a patient's life.

There can be many reasons that account for why the patient would be in distress.

Also, the news reports do not indicate whether Joan suffered her cardiac or respiratory problem before the procedure started, during the procedure or immediately after the procedure. There was one article that said that as the ear nose and throat doctor was passing the endoscopy tube down her throat while sedated, she experienced either respiratory arrest or cardiac arrest.

There is a significant difference between the two.

What is respiratory arrest?

Respiratory arrest means that the patient has stopped breathing. It's critically important to know why the patient stopped breathing but it's also just as important to restart the patient's breathing in order to prevent brain injury. A patient who goes without oxygen for a period of time can suffer significant brain injury if that condition is not corrected.

What is cardiac arrest?

Cardiac arrest is where the heart stops. This is most often referred to as a heart attack. Medically, it's often referred to as a myocardial infarction. Again, it's often helpful to know what triggered the cardiac arrest but even more importantly it's critical to get the heart restarted either through CPR or defibrilatator paddles or with the use of medication.

Was anesthesia to blame?

At this point, there is no public information about whether the anesthetic that was used caused or contributed to either her respiratory arrest or cardiac arrest. It's also unknown if there was or was not any overmedication of anesthesia.

When evaluating a medical malpractice case here in NY, we always want to know whether the patient was a candidate for this procedure. What she medically cleared? Did she require medical clearance from her primary care doctor to ensure that she was physically capable of undergoing the stresses of this “routine surgical procedure.”

Did she have an informed consent discussion with her doctor?

We also want to know whether her doctor discussed the risks, benefits and alternatives to having this particular procedure done. Legally, that's known as having an informed consent discussion. The theory is that if the doctor did not disclose all the risks, benefits and alternatives to having this procedure, then the patient is at a significant disadvantage and cannot make an educated decision about whether this “routine surgical procedure” is right for her.

In all likelihood, even though Joan is a well-known celebrity, I can pretty much guarantee that the doctor's office will have required that she sign the informed consent papers allowing the surgical facility to perform the procedure.

Simply because a patient blindly signs consent forms, does not give the doctor or the staff permission to be careless or negligent.

There are some injured victims who believe that once they signed informed consent papers, it automatically gives up their right to bring a lawsuit seeking compensation for the harms and injuries they suffered. That is absolutely false.

It merely gives the doctor and the hospital staff permission to go forward and acknowledges, assuming the patient read all the paperwork (which they never do), that the doctor has discussed with them the risks and benefits of this procedure.

Typically the doctor reassures the patient that everything will be fine.

In an effort to minimize the risks, the doctor will often not go through and explain in detail the most significant and serious risks associated with both the procedure and anesthesia.

Here's the rationale why they typically do not go through all the most significant and severe risks:

If doctors were to tell the patient about every single risk associated with minimally invasive surgery and the risk of anesthesia, no one would ever voluntarily elect to have surgery. That's why doctors tend to minimize and reassure their patients, especially elderly patients about the risks associated with these procedures.

Was the surgical procedure done properly?

After evaluating the informed consent issue, we then begin to look at whether the actual procedure was done appropriately. Was it done according to good and accepted standards of the medical community? Did her problems or complications arise prior to the procedure, during the procedure or after the procedure?

Was there a delay in diagnosing the problem?

Was there any delay in recognizing a decrease in oxygen saturation to Joan? Was her oxygen saturation monitor working properly? Did the anesthesiologist timely recognize that she was not breathing? What was done in order to resuscitate her while the ambulance was on its way?

All of these are unknown to the general public.

What type of injuries did she suffer?

After evaluating whether the procedure itself was done properly, the next phase of the investigation involves determining what type of injuries Joan suffered as a result of the medical carelessness.

Did she suffer a brain injury or brain damage because of a decreased amount of oxygen? Medically, that would be known as hypoxia, which means a diminshed amount of oxygen. If she suffered a complete and total lack of oxygen that would be known as anoxia.

Since she remains on life support on a respirator, it's unknown at this point whether she will be able to be weaned off the respirator and whether she will awake from her coma. It's also critical to know whether she has experienced any type of physical pain and awareness of her pain and her situation.

Does she have any conscious pain and suffering?

In New York, we are required to show that a patient is consciously aware of their dire situation. There certain tests that are performed by doctors and nurses to determine whether a patient is experiencing some level of pain and some level of awareness of what's going on. There have been cases in New York where patients have grunted and moved in response to family members voices that allows the family to then claim conscious pain and suffering.

Is there economic loss?

Another element of damages is economic loss. What this means is how much money the patient lost as a direct result of someone's carelessness. In this case, we have a famous and well-known comedian who has worked for decades in the entertainment industry. She has a long history of earnings as well as a future earning potential.

That will be a significant part of any claim the family chooses to bring.

Remember, if a case like this goes to trial and the defense disputes that they did anything wrong, the family then must show that they are more likely right than wrong that the doctor violated the basic standards of medical care and that as a result of those violations, the patient suffered significant injury.

If a jury determines that the doctor did in fact violate the basic standards of medical care and that Joan Rivers suffered significant injury, then the jury is legally obligated to give Joan and her family compensation based upon the testimony and evidence that is presented.

Testimony about economic loss is often relatively straightforward.

We can often show tax returns, W-2 forms and income earned each year for a period of years before this tragic event. We can show contracts and other obligations where she was expected to earn money into the future. Those are quantifiable and all documented.

Interestingly,  before the jury goes to deliberate, they are told not to add up cumulatively how much compensation they are giving to her in their verdict. Instead, each and every aspect of damages is supposed to be separate and independent.

However, news organizations, TV stations and newspapers love to add up the total amount of compensation that juries give to injured victims as a way to sensationalize the verdict and to attract viewers and readers.

There is no doubt that if Melissa Rivers on behalf of her mom, Joan Rivers, chooses to bring a lawsuit, it will be highly publicized if and when it goes to trial. If a jury returns a verdict in their favor, I am quite sure that the actual amount of compensation will be highly publicized as well.

This is a brief overview of what's involved in evaluating a medical malpractice case here in the state of New York.

From my point of view, I truly hope she makes a full recovery and enjoys good health into the future. She's a wonderful comedian and has a great sense of humor.

To learn even more about what an attorney needs to evaluate in this type of medical malpractice issue, I invite you to watch the video below... 

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer
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