It's holiday time here in New York. Between Chanukah and Christmas there are many office holiday parties. 

What happens though if your doctor had a little to much to drink and now is operating on you and you experience significant injury?

How can you prove that the doctor had been drinking?

First, before you can arrive at that conclusion, we need to evaluate whether the treatment was appropriate.

Was the surgery medically warranted?

No, I'm not talking about whether your health insurance company said it was or wasn't warranted as far as paying for the surgery. I'm talking about whether you actually needed this surgery. There is a difference.

I handled a case a few years ago where an eye doctor convinced a patient to have cataract surgery that, medically, did not need any surgery at all. The patient trusted her doctor and had the cataract surgery. As a result of improperly performed cataract surgery, the patient went blind in her eye. When we reviewed the medical records, our medical experts came to the obvious conclusion that this patient never should've had surgery to begin with.

If the surgery was warranted, then the next thing our experts will look at is whether the surgery was performed properly.

How was the surgery performed? Was it done in accordance with good and accepted medical practice? Did the doctor violates the basic standards of medical care when performing your procedure?

Were there any complications that occurred intraoperatively? If so, why did that happen?

Were there any complications occurred postoperatively? If so, why did that happen?

Were these complications ones that are known to exist and can occur even if there is no evidence of improper medical care? Or, are these complications ones that only occur if something was done incorrectly?

The next thing we need to evaluate are the injuries that you suffered.

Are your injuries a direct result something that occurred before surgery, during surgery or after the surgery? Or were you predisposed and at risk for developing these injuries and complications? Did you have a history and a likelihood of experiencing these problems?

Did the doctor know about this before hand? If he did, was there anything he could have done to limit or reduce the risk that this complication would have occurred?

What medical or surgical treatment is now needed in order to fix the problems you currently have?

Once this analysis is completed will we have a better understanding of whether or not there were violations from the basic standards of medical care that caused or contributed to your injuries.

You likely won't know if your doctor was under the influence that day

As an injured patient, it is highly unlikely that you will know if the doctor had been drinking that day or shortly before your surgery. The only thing you will know is that you didn't have these injuries before the surgery and now after surgery you are significantly injured. You wonder how and why you have these additional problems.

Your surgeon will likely come by to visit at some point. His explanations may be revealing. I guarantee you, there will be no mention of any drinking or alcohol involvement.

The only time you're likely to get a hint that alcohol may have been involved in causing or contributing to what happened may be if a nurse or hospital staff mentions something in passing that you overhear.

Is there a moral obligation to report a doctor?

While we like to believe that other doctors and hospital staff are under a moral obligation to speak up and say something if they notice that a doctor is inebriated and under the influence of alcohol, there are instances where everyone will keep their concerns to themselves.

There are many reasons why this could happen.

They might fear for their jobs. They might be mistaken. They might feel that the doctor is powerful and could get him or her fired with an accusation like that.

Even if a physician is obviously under the influence of alcohol, how can a staff member physically prevent the doctor from performing surgery and disrupting the operating room schedule? Is there a legal obligation for hospital staff to recognize the signs of alcohol abuse? Is there a legal obligation for hospital staff to speak up? Is there a legal obligation for hospital staff to notify hospital administration?

These are sticky areas that are fraught with accusations, innuendo and issues of proof.

Let's say that this is not the doctor's first rodeo with alcohol abuse. Let's also say that hospital administration had been aware of, knew of and was cognizant that a doctor was often seen in the hospital somewhat tipsy and always had a constant smell of alcohol on his breath. Let's also assume that the hospital put no restrictions on this doctor's ability to practice medicine or perform surgery.

If the hospital restricts the doctor's ability to perform surgery and now limits his ability to earn a livelihood, what happens if the hospital is simply wrong in their perception of what is going on with this doctor? What if that smell of alcohol really is a form of diabetic ketoacidosis? It certainly would open the hospital up to a lawsuit for incorrectly assuming that the doctor was drunk and unable to tend to his patients appropriately.

What if, on the other hand, hospital administration had been notified by many different staff members that this doctor was often seen in the hospital being tipsy, slurring his words, having difficulty remembering what instruments he needed during surgery and exhibiting instances that would be obvious for anyone to suspect he was under the influence of alcohol? What if the hospital failed to take any action that limited or prohibited the doctor from practicing or performing surgery?

Remember what I said earlier that you, as the injured patient, are likely are unaware of any of this?

Most patients won't have any idea of this behind-the-scenes stuff unless and until they overhear a conversation from a hospital staff member.

If there is sufficient evidence to confirm that there are violations from the basic standards of medical care and you now go forward with a lawsuit, there are certain claims that can be brought against the physician and the hospital if it is suspected that that the hospital failed to properly screen the doctor when employing this physician.

What happens though if the lawsuit is started without this claim and this information only comes to light during the course of the lawsuit? Can you and your attorney now add this claim against the hospital for failing to properly do a background check on the doctor and failing to take steps that would have prevented him from ever performing this particular surgery?

The answer is that if this information was not available before the lawsuit was started and only came to light during the lawsuit, then it is possible to ask the court for permission to add this claim to your ongoing lawsuit.

Legally, that would be known as making a motion to amend your complaint. Making a motion is simply a formal written request to the judge who is supervising your case. Amending your complaint means that you are now seeking to add something to the papers that were used to start your lawsuit.

The defense will certainly oppose this request and each side will need to perform extensive legal research to support their positions.

During the discovery phase of your lawsuit, when we have an opportunity to question the doctors, nurses and hospital staff as part of pretrial testimony, if we have an inkling or a suspicion that your doctor may have been under the influence of alcohol, we now have the ability to question the hospital staff about their observations and knowledge of this doctor's drinking. We may even be able to to question them about what they observed in the past concerning this doctor's activities at the hospital.

Whether we would actually be able to use that evidence and information that trial is a different issue.

What if a hospital technician learned that the doctor had gone to Alcoholics Anonymous after your surgery? Would we be able to use that information at trial to support the fact that the doctor was an alcoholic?

As simple as that question seems, is fraught with illegal obstacles.

Typically, we cannot use evidence of something that happened after the incident to show or confirm that the doctor abused alcohol at the time of your surgery.

Here's an example of that in a personal injury matter...

Let's say you're walking down the steps at your apartment building and there's a massive hole on one of the steps. You step into that hole and break your leg. One week later when you return home, you see that the landlord has hired a handyman to fix that step. The fact that he has fixed the step, is that evidence that the landlord knew of and should have fixed the step before your injury?

In New York, we are not allowed to use evidence that the landlord fixed the broken step as confirmation and evidence that it was defective at the time you fell. Legally, that's known as a subsequent remedial repair.

The defense would likely use that same argument to prevent us from getting in testimony that the doctor joined Alcoholics Anonymous after your surgery.

If there are suggestions that the doctor was an alcoholic, can you as the injured victim who is bringing a lawsuit against him and his professional corporation seek the doctor's medical records to confirm that he was an alcoholic?

Again, as simple as this question seems and as simple and obvious as the answer should be, there are many legal obstacles that will prevent us or at least try to prevent us from obtaining the doctor's medical records to fully evaluate whether he was under the influence or suffering some other type of medical problem.

In this hypothetical scenario, we need to show that you are more likely right that wrong that the doctor was under the influence of alcohol and should not have been performing surgery. There may be circumstantial evidence to help corroborate different witness observations about the doctor's ability or inability to perform surgery that we may be able to use at trial.

Likewise, if the hospital knew or should have known of the doctor's alcohol use and neglected to take action to restrict the doctor's ability to practice or even suspend the doctor, they could be opening themselves up to liability and adverse publicity.

If you think that you will find in some hospital record that a nurse made a notation that the doctor's blood-alcohol level was above 0.8, you're living in a fantasy world. Why? Because no one is going to breathalyze the doctor and no hospital staff would be foolish enough to make a notation like that in your hospital chart.

You can fantasize all you want about the likelihood of that happening. The reality is that you will never see a note like that in any hospital chart.

To learn more about why you never ask a question on cross-examination that you don't know the answer to, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer