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According to RadarOnline.com, Melissa Rivers will sue for Wrongful Death of her mom, Joan Rivers. Here's what a family in this situation needs to understand before filing a medical malpractice and wrongful death case here in NY.

  1. Who allowed Joan Rivers' personal physician to be present in the room during her endoscopy?

  2. How was a personal ear-nose-throat doctor permitted to perform a surgical procedure on her without the patient's consent?

  3. How was Joan's personal ENT doctor permitted to obtain a biopsy of her throat polyps if he had no privileges at the Yorkville Endoscopy center where Joan was having her endoscopy?

CNN reported that Joan Rivers' doctor took selfie, began biopsy before her cardiac arrest. 

RadarOnline.com also reports that Joan's daughter, Melissa Rivers will definitely file a wrongful death lawsuit.

The first thing an attorney will look for when evaluating whether there is a valid basis for medical malpractice case is whether the doctors violated the basic standards of medical care. That would include Joan Rivers gastroenterologist as well as her private ear nose and throat doctor, who has yet to be identified.

Then we look to see whether the endoscopy center violated any of their own rules, procedures, protocol and standards of care in taking care of Joan Rivers.

Typically, in order for a physician to perform surgical procedures at an endoscopy center, they must be qualified and receive privileges from the facility in order to see and treat patients.

News reports indicate that Joan Rivers personal physician, an ENT, apparently did not have privileges to perform any procedures at this endoscopy center. That could be a violation of the endoscopy center's own rules and regulations.

The fact that Joan's gastroenterologist who was performing the endoscopy, according to news reports, permitted and allowed her ENT doctor to perform a biopsy of vocal cord polyps, may also be a violation of the standard of care.

It will also be important to evaluate whether performing vocal cord biopsies with an unsecured airway in an ambulatory surgery setting also represents a departure from good and accepted medical care.

An “unsecured airway” means that the patient is not intubated. Typically during an endoscopy procedure they will receive an IV containing medication that gives them a light sedation. 

After speaking with anesthesia experts, it appears that one of the risks of obtaining a vocal cord biopsy is that the patient can suffer a laryngospasm. That means that the airway can become swollen and if the airway is not protected meaning that there is no tube going down into her lungs to breathe for her, then it becomes difficult or impossible to pass air down her throat and into her lungs.

This may explain how she went into respiratory arrest and/or cardiac arrest.

Mind you, this is speculation based only upon the information that is being trickled out in the news.

After looking to see whether the doctors and the endoscopy center violated the basic standards of medical care as well as their own rules, regulations and protocol, the next step to evaluate this type of medical malpractice and wrongful death case is whether that wrongdoing and those violations were a cause of Joan's injuries and ultimate death.

There must be a connection between the wrongdoing and her injuries.

Legally, that is known as causation.

In other words, we must show that there is a bridge between the carelessness and the injury she received.

Once we are able to show that there were violations from the basic standards of medical care and that those violations were a cause of her injuries and/or her death, the next question is to evaluate her damages.

I previously reported on whether a family in this situation would be able to bring a claim for conscious pain and suffering from the time she went into respiratory or cardiac arrest until the time of her death.

In order to fully evaluate whether she experienced any conscious level of awareness of her pain and her dire situation, it is critical to evaluate each and every page of the medical record. We look to see if there's any evidence that Joan had some level of awareness of what was going on. We look to see if she responded to any painful stimuli. Did she respond to touch or to sound?

Remember, during the course of her surgical procedure at the endoscopy center she was presumably under sedation. One could argue that she was not conscious and aware of what was going on during her surgical procedure nor during the time she experienced her lack of oxygen.

A patient who has a lack of oxygen for an extended period of time will suffer irreversible brain injury which could explain why she remained in a coma for eight continuous days.

It will likely be very challenging for the family to show that she had some level of conscious awareness if in fact she suffered a major brain injury due to lack of oxygen.

However, pain and suffering from the time of her surgery up until her death is only one component of damages the family can try to recover. Pain and suffering is typically known as “noneconomic loss.”

That means that someone cannot put a finite and precise number on exactly what her pain and her suffering is worth. Ultimately, a jury would have to decide if there was a sufficient basis for conscious pain and suffering, and if so how much.

Some other elements of damages and the compensation her family could try and obtain would be the economic loss she experienced. In other words, we look to see what money her family has lost as a result of Joan's death.

Specifically, we have to see how the family has been affected financially as a result of her untimely and tragic death.

We know she was earning a good living even at age 81. The news reports also indicate that she had commitments into the future. Those types of financial losses to the family are often easily documented.

In addition to showing how much she was earning in the past and what she was likely to earn in the future, we also have to look at her life expectancy and how much longer she could have been expected to work as she got older.

I will tell you that I was present at a marketing seminar where Joan Rivers gave the keynote speech only a few years prior to her death. She was remarkable in that she was still eagerly working and had a great desire and hunger to continue to work. That insatiable drive will be important to ultimately show to the defense and if necessary, to a jury that this was someone who was likely to work for many more years given her otherwise good health.

To learn more about how wrongful death cases work here in New York, I encourage you to watch the video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer