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Copy follows:Department of Veterans Affairs, General Counsel
(021B),
810 Vermont Avenue,
N.W. Washington, D.C. 20420
Notice of Disagreement with Denial of Administrative Tort Claim
The V.A. staff violated plaintiff's right to informed consent and negligently committed the crime of battery in all three surgical procedures on 6/18/07 and the colonoscopy on 12/12/07. The consent processes used by the Portland V.A.M.C. on 6/18/07 and 12/12/07 in plaintiffs case were coerced and drug facilitated rather than free, misleading and fraudulent rather than informed.
The gross negligence of the V.A. staff in the informed consent process is not only a matter of negligence, but also rises to the level of battery, a violation of the plaintiffs civil rights, in addition to negligence and malpractice.
Dr. Karen Kwong, and Dr. Judith Collins and others in collusion with these physicians did violate V.A. policy, Oregon state Laws, and the U.S. Constitutional rights of this plaintiff, myself Mary Birmingham.
These violations are the proximate cause of the patients PTSD and chronic surgical site pain.
Statement of Facts:
1. The consent forms in all cases save the mastectomy (as the attempt to re-consent me on the gurney failed) were signed post the administration of an oral sedative, post being placed on a gurney and in most cases just moments prior to procedures. This type of drug used in sedative doses is known to produce memory loss and impairment of cognitive processes including rendering the patient passive and conciliatory. For this reason it is standard procedure to answer ALL the patients questions, have ALL consent forms signed, reviewed and verified by the patient prior to the administration of such drugs. This is not the procedure followed on either dates in my case.
2. In the case of the mastectomy consent process which took place on the 15th, plaintiff was intentionally deceived during the consent process. Oregon law requires providers provide patients substantial detail in response to questions or requests for more information. In response to my questions, Ms Ellis chose to withhold information, employ deceptive language, and expressly mislead me concerning trainee involvement in my care. In response to a sentence (in the consent form I read on the 15th, not the one my signature was assigned to digitally) in the consent for the mastectomy that I was offered and read on the 15th I asked Ms. Ellis about the extent of trainee involvement, and requested she affirm that it would be Dr. Kwong performing the surgery. Dr. Ellis, did NOT provide the substantial detail required in response to this inquiry about substitutions and trainee involvement. She mentioned only minor tasks that the trainees might perform, nodded her head and verbally confirmed that Dr. Kwong would be performing the surgery herself. She mentioned nothing of major parts of the procedure such as cutting and removal of tissue, invasive or risky procedures, including sedation, or intimate exams, being performed by trainees. Ms. Ellis did not inform me that Dr. Kwong's job was to assign these procedures to resident teams, that Kwong did not perform the procedures herself, and is not always in attendance (prior to graduation chief residents must perform surgery without the presence of the attending). June is a time a year one can assume the chief resident on any team would certainly be performing procedures in absence of the attending presence. It is my understanding (from a letter written to DeFazios staff) that five O.R. rooms were in occupied with two attending, and staff was rotating between O.R. rooms.
3. On 6/15/07 I wrote, "no males" on the consent form Ms. Ellis provided a hard copy of which I read. This is not the same consent form physically, nor does it read the same, as the one that my signature was digitally assigned to and placed in my medical records. I was not informed that my signature was being assigned to a standard form, rather than the physical consent form of which I was shown a hard copy. Ms Ellis said nothing as she saw me make this altercation to the form about it not being the form to which my signature would be assign.
4. On the day of the procedure, Dr. Karen Kwong attempted a drug facilitated gurney consent for a male to be substituted as the performing surgeon. I was too sedated to remember much about him. I do remember telling her no, and the look on Dr. Kwong's face (she rolled her eyes in agitation). My husband reported that a male (not young enough to be a resident) stopped by and told him that he had just spoken with me and he was sitting second chair as he rushed off to O.R. I have no recall of any male speaking to me directly prior to surgery on that date. Only Dr. Kwongs attempt to re-consent with him standing behind her. When phoned in Calif, Dr. Chaugle would not confirm that she was the surgeon "assisting" Dr. Kwong, and the only part of the surgery Dr. Kwong confirms she performed was closing (which is contrary to what I was told by a nurse as she commented on the close job. There is a resident named Stephen Noble in the records as a member of the performing resident team in conjunction with Ms. Ellis. Ms. Ellis I understand was a no show. I asked Dr. Kwong about trainee and male involvement in my care at a follow up appointment and she claimed there was only Dr. Chaugle present assisting her. She also claimed there were no male nurses, students, none what so ever. The facts are that the resident team was much larger than one resident, males were on the resident team, as well as on the nursing and anesthesia staff and Dr. Kwong did not perform the major part of the surgery.
5. To this day Dr. Kwong has denied that ANY males were in the room, yet evidence indicates that males were not restricted in any capacity. Records conclusively indicate that a male circulating nurse was there throughout, and a male nurse anesthesiologist replaced one of the women at the start of the mastectomy. Records also show a male resident Stephen Nobel, was on the general surgical team. In addition, there is substantial evidence, these three were not the only men involved. This evidence includes but is not limited to:
a. the older male introducing himself to my husband and claiming he had just spoken with me and as "sitting second chair" on his way into O.R.
b. the librarian reading off the names of McConnell and Adams as a couple of my care providers on 6/18/07 as she read from the computer screen.
c. A note in my medical records indicating that Dr. Naik, wanted to be kept informed of my case in conjunction with the Resident schedule.
6. On 12/12/07 prior to the gurney consent the patient was lead to believe Dr. Judith Collins would be performing the procedure. I had cancelled the colonoscopy several times due to concern over trauma-induced spread of the cancer. By the time the appointment was made they were well aware of this concern, which would indicate that disclosure of trainee involvement was indicated at that point, prior to my making the appointment. In spite of the fact that the patient had canceled previous appointments citing concern over trauma induced metastasis, no mention was made of trainee involvement in patient care prior to being gurney consented.
7. The patient did also ask Dr. Collins about male involvement in her care on 12/12, informing Dr. Collins that her consent to the procedure was conditional upon the lack of male involvement. Dr. Collins assured the patient no males would be involved. In direct opposition to patients expressed objection to male involvement, Dr. Collins chose to employ coercive means so that she might use the patient in a way she knew the patient would not consent to being used.
8. The patient was again gurney consented. Given mind/mood altering drugs (again an oral pill prior to being taken to the procedure room), striped and placed on a gurney, taken to the procedure room and then was introduced to a male fellow, told he would do the procedure and told to sign the consent form. Again, there is no doubt, mind altering drugs had been administered prior to the consent process.
9. I was told Mr. Miller would not be present. He would stand outside the door, available to take polups to the lab if necessary. He remained in the room, at the door only long enough to let in more people once I was consented and further sedated. I assume Kevin Bizer was one of those people, as he witnessed the consent form even though I do not remember him being in the room. If he was, he was hidden. I do not think he witnessed the consent. In spite of statements made as to his limited role and lack of presence, Mr. Mill was intimately involved in the procedure. Dr. Collins confessed this to the patient upon questioning. The person, Kevin Bizer, signing as witnessing the colonoscopy consent was not present at any time before or during the consent process, including my signing the consent form.
10. Both Kwong and Collins have expressly indicated post these procedures that they did understand this proviso to my consent. Moreover, both Dr. Kwong and Dr. Collins expressly indicated prior to my being drugged, and taken to the procedure rooms that they understood that I wanted NO males present during these procedures. Dr. Kwong indicated that she understood this no male proviso to my consent by:
A. Indicating to me that a male that was asked to witness a consent form, would not be in O.R. This was after I had refused to sign the consent form while on the gurney for the surgery. She said, "don't worry he is not going to be in the O.R. room".
B. doing a little song and dance for me right before putting me completely under and taking me into O.R. I mean right before, by now she knows who is in the room and who is not; my impression is that I am right outside the door being w/ the anesthesiologist putting me the rest of the way out before they take me in, b/c of the males I would guess. Anyway, the song and dance goes like this, "Oh, look we have an all female team, how rare, it will be like a slumber party." Only in response to Peter Defazio's inquiry was it ever claimed that Dr. Kwong did not understand this proviso included nursing and anesthesia staff.
She continued to lie post the procedure on multiple occasions as plaintiff, asked about males in O.R. during these procedures. She claimed that,
"no males were in O.R." ""no, nurses, doctors, students, no males"
" I am sorry I did not understand that you were thinking there were males for your surgery" "when a woman says, no males we assume she means it" ": all the males were kicked out" After she made this statement, I knew about Hoke having found his name in the handwritten "Record of Anesthesia." and before I could get out any more (like Ron Gschwend and his involvement including with the Litho, prep, and observation), she snapped, "Where did you get that?" The conversation abruptly ended. My husband witnessed this conversation.
There can be no doubt that Dr. Kwong understood I did not want ANY males in OR and my consent to the procedures was conditional upon such.
11. Not satisfied with Dr. Collins silence in response to the first time I asked her about male presence, I explained to her Dr. Kwong had betrayed my trust in surgery, and I did not want it to happen again, and rather than ask, told her NO MALES! The emphasis is not just on this paper, but was in my voice at the time. This time Dr. Collins expressly promised, that no males would be present/involved during the procedure. It was noted I was "angry" in my chart. They gave me a pill, "to help me relax", and again by the time I found myself in the procedure room, I was significantly sedated. This is where the entire consent process took place. After Collins walked in with the males, she introduced the fellow told me he was doing the procedure and stepped behind me, he read only a few lines of the consent form, handed me a pen and told me to sign. I was not read the consent form in full detail, I was ordered rather than asked to accept male and trainee care, and I was not given full relevant information about roles and experience levels.
12. Not only serious emotional trauma (as has been documented by both the Roseburg V.A. and Susanna Wood, who"s statement is attached), but also physical trauma resulted. In the case of the mastectomy, I suffer permanent surgical site pain and trunk lymphadema. Kwong sited her own states, "none of my patients have every suffered lymphadema", and said nothing of permanent surgical site pain due to failure to identify and avoid nerve endings, a skill learned by experience. 30% of women who have had mastectomies suffer permanent site pain. It is a material fact, and one that is even more material when your surgeon(s) are inexperienced, that should have been revealed. Weather from a gang bang approach to teaching colonoscopies, a gross lack of experience of the "fellow", or a sexual assault, I suffered pain and bruising that could not be explained, according to Dr. Collins by the procedure. The best I was able to figure out from what I was told is that if the tube was pulled more than once without uncurling it, then the trauma could be explained. This would likely mean that more than one person was practicing performing a colonoscopy, or that I was fighting against their violating my autonomy, my body, or I was sexually assaulted. The pain eased, but after a couple of weeks it came back with a fervor, worse than before. I found my self sitting in a tub of water most of the day for a couple of three days. (The pattern of break outs, a few more each less in intensity for about a year, continued to follow the pattern of a new infection.) Without any information as to which of the above was true, I felt I had to get STD tests. I tested positive, my husband of over two decades tested negative. The breakout was in the rectum and I do not practice the sort of sex that would cause such an infection. At this point I became convinced I most likely had been sexually assaulted. I would suffer this near certainty for over a year before I discovered that over half the V.A.M.C s were not property reprocessing colonoscopy equipment. Now the V.A. may claim that it is my own fault if I thought I might have been sexually assaulted; however, men who have or are serving in the military are more likely to rape, 80% of those who rape are given honorable discharges, and then hiring preferences within the V.A. system. I also requested information about infection rates at the PDX VA, I was told nothing about problems with V.A.M.C. not properly reprocessing reusable equipment. I was told no records were kept regarding infection rates.
15. The PDX VA is so female unfriendly that it constitutes a hostile environment for female veterans in violation of our rights to equal protection under the law. My mother used the V.A. before me, and thus I am well aware that the V.A. has had sufficient time to make much more progress in accommodating female veterans. Yet, staff was still practicing in such a way as to cumulatively constitute a hostile environment to female veterans. Asking us to disrobe without providing privacy or gown, just stand there and watch us take off our cloths, performing exams and procedures such as EKG s in ways that unnecessarily expose the patient, ganging up on women with male trainees without consent or even introduction, rudeness in response to refusals, failure to take "no" as an answer, sedating the patient and then asking again, and/or sedating patient and violating without asking again, behaving in condescending paternalistic ways in response to legitimate health concerns and questions regarding care, effectively creating an environment not only negligent to women's health care, but hostile to female veterans, and thus in violation of our rights to equal treatment under the law. Portland V.A. medical staff has been guilty of every offense in the above paragraph all within a one year period of health care. I was even asked by a GYN resident during a pelvic exam, "if I had ever been sexually assaulted", now this is a question to ask before or after an exam, not during such an exam, literally while his hands are inside of the patient. What are you teaching your residents? How to make sure they have no female patients unless they are tricked and drugged? The V.A. is aware that the failure of the V.A. to treat female patients with dignity is resulting in negative, frightening hospital experiences, they are aware the V.A. is a male dominated extremely masculine culture that discriminates against women. The PDX VA was aware that I had concerns regarding getting such intimate care in the V.A. in part because of this culture.
16. The V.A. has also engaged in retaliation against the patient in the form of entering misinformation in her medical records and the distribution of much of this non-medical miss-information entered in patients medical records, while other information is lacking, which leads us to
17. The V.A. has either not maintained legally required records, or has denied patient access to requested records, including procedures (cath placement) medication, and records of reprocessing reusable equipment.
This case turns on three issues as they relate to patients informed consent:
1. A patients right to know who is performing what procedures on them.
2. A patients right to refuse trainees
3. And the extremely cohesive nature of drug facilitated and Gurney consents
The Argument:
Informed consent is based in ethical theory, the U.S. Constitution, and Judicial history. Every individual has a right to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. U.S.C.A. Const. Amends. 5,14. The U.S. Supreme court has long recognized a persons fundamental right to privacy. In 1905 in Mohr v. Williams, the court recognized a cause of action under battery for unwanted touching and violation of the bodily integrity by a physician of his patient. The court in this case recognized that a patient"s "right to himself" as a "free citizen's first a greatest right" and that this "right to himself" prohibited the physician from violating "the bodily integrity of his patient without his or her knowledge and consent.
Judicial precedence has made it clear that this personal autonomy includes, "a patients inherent right to choose his or her own medical professionals, and it is the doctor's ethical and legal duty to inform said patient about any substitution. Dingle v. Belin, 2000 WL 365660 (Md.) rev'g, 127 Md. App. 68, 732 a.2d 301 (1999) (April 11, 2000) (Perna v. Pirozzi: USSC 1983) Oregon Law (ORS 677.087 (1) mandates that once a physician agrees to provide a service they cannot substitute another provider without informing the patient. Consent to surgery is specific for the surgery and procedures necessary to such surgery by a particular provider, not carte blanche consent to any and all procedures and/or exams by any practitioner or trainee. The patient has a right to know not only the identity of their surgeon, or physicians, but also their level of experience. In Johnson v. Kokemoor, 545 N.W.2d 495 (Wis. 1996), the court held that a patient has a right to know the experience level of their surgeon.
Right to reject trainees and/or care.
The Law, courts, patients, have all recognized a patients rights to be informed of trainee roles in their medical care. There can be no question it is a material fact. Research has proven that an overwhelming number patients want to know the specifics regarding what roles trainees will play in their health care. For surgical procedures, most all patients want the attending surgeon to tell them what the resident will do during the operation. (Kim N Lo B Gates EA, Disclosing the role of residents and medical students in hysterectomy: what do patients want?, Acad Med 1998, 73: 339-341)
For surgical procedures, almost all patients want to be informed by the attending what will be done by the residents or other trainees during the operation. EDSHSF227.".note 6 Another study found that patients found it very important to know that a medical student is going to make the incision, hold retractors, perform rectal or pelvic examinations under anesthesia, suture incisions, or intubate them. (Silver Isenstadt A Ubel, PA, Errostion in the medical students attitudes about telling patients they are students, Kennedy Institution of Ethics, 1999,14 481-487) (Ubel PA, Silver-Isenstadt A, Are Paitnet willing to paricipate in medical education? Journal of Clinical Ethics 2000: 11 (3) 230-5
It has become evident that the PDX VA employs lies and deceptions when patients ask questions, about trainee involvement in their care. The trend is obvious and undeniable. Not only did both Kwong and Collins both employ deceptive methods, but I asked one person in the PDX E.R. who was about to attempt placing an I.V., how many times she had done it before; she hesitated and a woman behind her said, "oh she has done this lots of times", the woman went on to miss twice and as she was starting the third attempt, I paused my conversation with the doctor long enough to let her know she did not get a third strike, and the other woman stepped up and placed the I.V. Latter the young student informed me that she had never successfully placed an I.V.
Kwong and Collins intentionally misrepresented, concealed and withheld information on student and male involvement intentionally giving me the false impression that they would be performing the procedures, all the while, knowing this would not be the case. During the consent process with Ms. Ellis on 6/15/07, I asked Ms. Ellis about trainee roles, and once again expressed concern (research based) about procedure trauma related increase in cancer growth, indicating that trainee involvement was a material factor in my decision making process. I also explicitly asked Ms. Ellis about tranee involvement in my care. If the patient expressly makes concerns known, substantial disclosure is required in response to the patients concerns. The V.A. had an a priori duty to inform me of trainee involvement in my care in some detail, identity, gender,"of all providers; but, when I requested information regarding trainee involvement in my care during surgical procedures on 6/18/07, according to Oregon law, such requests trigger an explanation in substantial detail. She did not provide such detail; listing only minor task that trainees might perform. I am sure Ms. Ellis would have wanted full disclosure where she in my shoes; yet she chose deception.
One has only to read physician and nurses response ("that is why I do not go to teaching hospitals for medical care; you were a fool, it is your fault.") to patients complaints about trainee ghost procedures and non-consensual intimate practice exams to know that a very large number of medical staff do to patients what they would not allow to be done to themselves. That is they know the information is material to the patient, and that is precisely why they will do most anything including lie to keep the requested information from the patient. At that time, I made it clear to Ms. Ellis that my consent to the mastectomy was conditional upon Dr. Kwong (experience faulty not trainees) performing all major parts of the procedure She listed only minor tasks that might be done by another person or trainee, and assured me that Dr. Kwong would be the surgeon. In the state of Oregon the law recognizes a subjective patient-based informed consent standard. This requires the physicians to provide patients with all of the information on the material risks, benefits and alternatives to a treatment that a patient would attach significance to in making a treatment decision. The standard is not what this or that, or any community of physicians may disclose, the standard is what a patient would want to know, both as a rational patient, and when clearly indicated, the subjective or particular patient. This standard by it's nature, mandates a sort of shared decision making process in which the patient is given information sufficient to indicate what further questions may be relevant, and the patient is encouraged to supply relevant personal information indicating lifestyle, personal preferences, and other information the patient might feel is relevant.
The goal is to enable the patient to, with the assistance of the physicians expertise, come to an informed decision regarding care options. Patient-based informed consent process, particularly those employing shared decision making are the gold standard for informed consent. This is what the V.A. claims to employ. It is not what faculty at PDX VA practicing. If it were, we would not be here today.
While substitutions occur outside teaching situations (when a physician subcontracts out a patient, with a kickback, and moves on to a higher paying case), it has historically occurred systematically in connection with medical education. I have read nurse after nurse and doctor after doctor, respond to complaints about violations against patient informed consent, privacy, dignity, and autonomy with, "well do not go to a teaching hospital if you do not want to be treated that way, I would never go to a teaching hospital"; yet, a patient cannot know that they will be manipulated and lied to, drugged and gurney consented, autonomy disrespected with gurney consents, ghost procedures, intimate exams by multiple trainees,... While patient deception has long been a common practice, it is one that is at it's historical end. Such practices have been identified as a legal and ethical problem by the medical community and the V.A. as well as the courts. In 1973 the Department of Health, Education and Welfare issued a report which recommended that, "the patient who is about to enter a teaching hospital should be told fully what to expect"told how students, interns, and residents will participate in his or her care (U.S. Department of Health, Education, and Welfare, Report of the Secretary's Commission on Medical Malpractice. UlSl government printing office Washington, D.C. 1973 The failure to advise the patient of the physician's lack of experience or trainee roles in providing intimate, critical, invasive, high risk care violates the duty of obtaining the patient's informed consent. In 1985 the Joint Commission on Accreditation of Hospitals (now JCAHO) said, "The patient has the right to know the identity and professionals status of individuals providing service to him"The participation by patients in clinical training programs should be voluntary" (Comprehensive Accreditation Manual for Hospitals 2004, Standard RI2.60) In 2000 the AMA issued a recommendation stating, "Patients should be informed of the identity and training status of individuals involved in their care, and all health care professionals share the responsibility for property identifying themselves".Patients are free to choose from whom they receive treatment.(Counsel on Ethical and Judicial Affairs of the American Medical Association. Medical students' involvement in patient care. Journal of Clinical Ethics 2001: 12(2):111-5., See also American Medical Association Code of Medical Ethics E-8.087, Medical student Involvement in Patient care. http://www.ama-assn.org/ama/pub/category/8491.html
The V.A.'s policy if not PDX VA"s practice, recognizes patients rights to refuse care by trainees. "I think you are right there are limits to what requests we can practically honor, but we need to inform the patients what they are getting into"., which includes receiving care by residents and trainees. If they have no other options, at least they will be aware of how they will receive care in the VA, and if they have the option of other health care system, maybe they will vote with their feet." (Dr. Berkowitz, va medical ethics discussion published at va web site, "Should Patients be able to refuse care by house officers or trainees?" Though, I have to say, based on the transcript of the rest of the conversation, this is obviously not what is practiced. click here
While, many physicians and institutions, particularly large teaching institutions and V.A.s, have resisted compliance with the new community standards, we can not let the practices of resistance, of non-compliance, however common be an excuse for negligently rejecting what patients and patient pressured professional organizations, the law and courts, have deemed necessary to protecting the civil and human rights of patients. Trainee roles, and specifically who (including their gender) will be performing major parts of a procedure and intimate exams, should be revealed to the patient as soon as possible. To be free from coerciveness, it should be done at the time the appointment is made, if not before. The latter the information is revealed to a patient, the less free choice the patient has to respond to the new information. Above the door of many libraries one can read, "knowledge will set you free"; the other side of that coin is of course that ignorance and deception will render you a slave. While, and perhaps because, the V.A. plays such a central role in clinician training, making veterans important source for medical education, it is essential veterans retain their rights to refuse. This right, however, is effectively dependence upon being properly informed; honestly, fully, and timely, in fashion. The AMSA suggest a patient, should be told when the appointment is made and given all information necessary for consent to be informed including status, experience level, supervision level, and sex of all participating in exams and procedures. http://www.amsa.org/about/ppp/pr.cfm At some point in fact many patients shut out new info, as the decision has been made and now is the time for brevity, not new information, consideration of alternatives, and second guesses. Certainly the information should not be withheld in response to patient inquiries only to be revealed, if at all, post the administration of sedatives and being placed on a gurney.
Gurney consenting is very coercive. Research shows, that virtually 100% of patients feel they have reached a point beyond choice at that late moment, physicians are well aware, and some take advantage of that fact. At this point patients are unable to read consent forms, cannot digest the information, and may not remember the consent. Medical staff is very aware of the cognitive changes in a patient once they are naked, so aware that many offices have posters about patient "hearing" (understanding and comprehension) significantly declining with nakedness. Medical staff is also aware that a patient cannot read a consent form in that condition. Patients reasonably assume they have been provided ALL relevant and requested information prior to scheduling a procedure, and certainly prior to being given mind and mood altering drugs, striped and placed on a gurney. The day of the procedure, after a patient is disrobed, given mind altering drugs, and placed on a gurney, is well past the time for engaging in any part of the consenting process. This is not the time for disclosure of details such as a trainee being substituted for the experienced faculty member they were lead to believe up to that very late moment would be performing the procedure. This is not the time to present information such as st6udent observation, video taping, trainee exams, etc"
Both the spirit if not the letter of ORS 677.087, as well as, ORS 677.097 can only be considered violated by gurney consents. ORS 677.097 provides, in part:
"(1) In order to obtain the informed consent of a patient, a physician * * * shall explain the following:
"(a) In general terms the procedure or treatment to be undertaken;
"(b) That there may be alternative procedures or methods of treatment, if any; and,
"(c) That there are risks, if any, to the procedure or treatment.
"(2) After giving the explanation specified in subsection (1) of this section, the physician * * * shall ask the patient if the patient wants a more detailed explanation. If the patient requests further explanation, the physician * * * shall disclose in substantial detail the procedure, the viable alternatives and the material risks""
To gurney consent a patient violates this process in that the nature and requirements of the dialogue implied and necessary to the process requires the patient be in a position to read, ask questions, understand explanations, and be in a position to employ this information in the decision making process. I am in good company in this opinion. "The SUPREME COURT OF THE STATE OF OREGON in Macy v. Blatchford and Alberts (CC 9407-04746; CA A93045; SC S45678) determined that it is significant that the statute requires a physician to "explain" the treatment, alternatives, and risks to his or her patient. "Explain" means "to make plain or understandable: clear of complexities or obscurity: * * * provide an understanding of [something]." Webster's Third New Int'l Dictionary, 801 (unabridged ed 1993). Explanation implies more than a mere correct statement of the facts"unless and until such patients are capable of understanding the physician's point, the physician cannot be said to have "explained" anything to any such person." The employment in this case of deceptive language, failure to provide requested details regarding trainee and male involvement, and drug facilitated cooperation from patient in substitutions of male trainees for experienced female faulty, all compromised patient understanding of how trainees would be involved in her care. "Explanation clarifies an issue or makes it understandable to the recipient and, almost by definition, takes into account the mental state and capabilities of the recipient. The concept presupposes that the patient is capable not only of understanding the risks of and alternatives to a proposed treatment, but of using that information in a rational decision-making process. That inquiry is not limited to evidence that purports to demonstrate an absolute inability to process a physician's words, that is state name, place, location, and procedure about to undergo." (In the colonoscopy case I failed location the question.) In the context of the Macy case, for example, a reasonable juror might believe that a sexual relationship between defendant and Macy would undermine Macy's ability to listen objectively to and utilize information provided by the physician, in making an independent and informed decision about her health care. (6) The court concluded that evidence of a sexual relationship between a physician and patient may be relevant to show that the physician failed to obtain the patient's informed consent for treatment, and that the evidence that the Macys offered here was relevant in that respect. (7) " If a sexual relationship could put a patients ability to understand and process information, intentional deception, manipulation, lies, misleading language, and mind/mood altering drugs, and coercive gurney consents certainly would. Also see, PGE v. Bureau of Labor and Industry, 317 Or 606, 859 P2d 1143 (1993)."
The V.A. s own policy is against gurney consenting patient save ONLY cases where it is impossible to push the consent process further up stream was violated in all these cases, as in every case there were face to face opportunities for Kwong, Collins, Anesthesia, and even GYN to have provided me the information necessary, present informed consent documents, and request my signature, prior to the gurney. The V.A. sites the compromise of both patient comprehension and choice as reasons why gurney consenting is unethical and against V.A. policy. National Ethics Teleconference Informed Consent Practices: Lessons Learned from Implementing iMedConsent November 28, 2006
Patients have a right to choose their provider and they have a right to refuse trainee care. Deception undermines those rights.
Physician Privledge:
While Oregon does allow for a physician centered proviso regarding information that may be detrimental to the patient, it would be a gross abuse of justice if this proviso were allowed to be used to deceive patients in terms of the identity of their providers and level of experience. If patients have a right to reject trainee care, and they do; if patients have right to reject medical care period, and they do, then practitioner fear of such rejection cannot be allowed to justify failure to disclose information, and other forms of deception. Yet, there is what Santen et al. referred to as a purposeful conspiracy of silence" because physicians do not want to deal with a fully informed patient who may refuse to allow a physician in training to participate in their care. They also do not want to temper their behavior according to patients wishes or limits. For example, they do not want to limit the pelvic exams under anesthesia to the surgeons, or get explicit consent for additional, not medically necessary exams by other trainees. While the V.A. may claim they could not give me care unless I accepted trainee and male involvement, this fact does not negate their responsibility to inform. The V.A. may not have been able (and if so this is a problem in itself, as staffing to meet female vets needs is mandated and the V.A.'s own research indicates female veterans needs for female staff) to provide me care and respect my wishes (no trainees performing major parts of the surgery, and no males), it was not an emergency, the procedures were elective, and even in the case of the breast cancer, observation was an option. Going elsewhere for care was another option. In the case of the colonoscopy, the V.A.'s argument that they would not be able to provide information about trainee roles and an all female staff is even weaker, alternatives even more accessible.
While in the case of unreasonable requests and undue burden upon the staff a patients request may not be honored, this does not equate to a license to manipulate and lie to patient undermining their autonomy, their right to refuse care. Paternalistic deception, ignorant arrogance, and conflicting interests cannot be allowed to overcome patients right to "free and informed consent", or to refuse treatment for whatever reason. A physician who treats without such consent is not a patriarch, but a batterer, in violation of the principle of autonomy inherent in any idea of human dignity and essential to freedom and democracy. We cannot allow "therapeutic privilege" to provide justification for criminal activities such as battery. To do so would undermine the publics confidence in the health care professions. This unprofessional conduct, this display of poor moral character, regarding informing patients of trainee involvement, of who will be playing what role in their medical care, would cause any reasonable person to have substantial doubts about the V.A. and the practitioners in the V.A.s honesty and respect for the rights of patients.
Gurney Consents resulted in other failures in informed consent process.
Employing gurney consents in order to overcome patient objections to trainee involvement in their care, naturally results in other information that is material to a patients decision making process not being communicated at an appropriate time, or not at all. As could be expected in the case of gurney consents, in violation of Oregon informed consent laws, the PDX VA failed to provide me information regarding many material risks associated with the surgical procedures, anesthesia, and the colonoscopy.
In the case of the gurney consents, the consent forms were not read to me in whole, if at all. Most of the risks and sensitive details (detail that patients tend to want to know and that make a decisive difference to some) on these forms were not discussed previously, not read during the gurney consent, and thus the first time I knew of the risk or sensitive detail is when I researched the medical records after the fact. Other risks were never disclosed.
In violation of ORS 677.097 c I was not informed of ALL risks associated with these procedures as could be expected with gurney consenting. The consent forms contained a vast amount of information I would like to have been informed of, but was not provided that opportunity prior to being drugged, striped, and placed on a gurney, when nothing can be read, little understood and remembered. I was rendered incapable of reading the documents, they were not read to me in whole, and contained things to which I would not have consented. Other things I would like to have been told about, and research indicates most patients feel they should be told about, are not in the consent forms.
I was not informed of the risk of permanent surgical site pain. 30% of patients suffer permanent pain, yet the consent form simply lists "pain" as a risk. Pain is a risk that one would expect to suffer post surgery, for a while, but there is no reason for a patient to understand that they are risking permanent chronic pain simply from the single word, "pain". I was not informed of the risk of PTSD, something else patients suffer at significant rates post surgery, particularly those patients who feel they were violated or treated poorly by medical staff. While I did not know enough to ask about permanent surgical site pain, or PTSD, I did ask enough questions regarding both surgical risks, and trainee involvement to trigger a substantial detail requirement in both cases. Although I requested information about infection rates, I was not informed about the V.A.'s poor track record in terms of proper reprocessing of reusable equipment. Something a patient asking about the V.A.'s infection rates should be informed of in my opinion. In fact, answers to some questions were simply refused, this being one of them. I was told they did not keep statistics, so they did not know their infection rates. Which brings us to the fact that among the risks I was informed of, I weighed most of those risks in the decision making process with the expectation that an experienced practitioner, not trainees, would be performing these invasive risky procedures.
Dr. Kwong gave me her personal stats on such issues as lymphadema, stating that none of her patients have ever suffered lymphadema. I do. Dr. Kwong made no mention was made of trunk lympadima (only in the arm). She also, refused to diagnose the lymphadema even after I showed her the swelling several times. This delayed treatment for many months. Some risks, including risks of infection, those associated with prolonged sedation including suppression of the immune system, greater level of physical trauma from the procedure,".in addition to the intimate and sensitive nature of the procedures rendered the number of trainees or non-essential presence in the room a material factor to many reasonable patients decision regarding if, when, and where to access medical care.
For example, not only was I not informed about the risk of permanent surgical site pain, but I was not was denied the opportunity to weigh this risk with the understanding that a trainee is being taught, including taught how to avoid nerves, a skill of practice. Inexperienced surgeons patients can reasonably be expected to suffer permanent surgical site pain to a greater degree than the experienced surgeons patients. I suffer surgical site pain daily sufficient to make me very reluctant to wear a bra and/or prostesis, to drive, or do much work requiring upper body strength. More Americans die each year from preventable medical errors in hospitals than from motor vehicle accidents, or breast cancer. While medical schools like to claim superior care, statistics do not support their claims. Students make more mistakes, the claim of no difference in outcome for the patient does not consider many factors that affect a patients post procedure quality of life. Patients are more likely to suffer excessive bleeding, brusing, and pain, in addition to more serious complications at the hands of trainees.
As my opportunity to talk with OBGYN was minimal to non-existant, Dr. Kwong had a duty to relay this message to the GYN team. The GYN team had a duty to inform me prior to the gurney about observers, video taping, multiple pelvic exams, and that a resident would be supervising a Jr. performing for the first time, in absence of a faculty member. Yet such material information was not revealed at any time before, or during the gurney consent process. The GYN team had a duty to inform me that they may take videos or photos during the procedure.
If I had known I would be reduced to what I would feel was little more than a breathing cadaver I would never have accepted this sort of intimate and risky health care from the V.A.
Although empowering patients and promoting shared decision making are central values in ethical health care, it has became clear through reports and published studies that there are serious deficiencies in the quality of informed consent in the VA and the private sector. Common problems reported included cursory conversations with patients, and incomplete or illegible documentation. Consent forms were sometimes misplaced or lost, resulting in treatment delays or cancellations and legal liability. Informed consent "quality gaps" First is the practice of consenting patients on the gurney when they are about to be wheeled into an operating room or procedure area. Second is the delegation of the informed consent responsibility to personnel who are not authorized to obtain consent. The third is an informal practice of obtaining "witnesses" signatures long after the patient and practitioner have signed the form. Little is being done to correct these known deficiencies.
. Gender Matters:
While practitioners would like to claim that the gender of one's provider is irrelevant, evidence is to the contrary. All things being equal, the gender of ones provider may not matter. All things are not equal. Females are statistically much less likely to suffer complaints to the medical or nursing boards and much less likely to commit a crime against a patient. Statistically, female staff seem to be safer bets. Empirically, many women experience fewer problems with female staff in terms of listening to them, treating them with in a respectful rather than degrading ways" Thus, such violations of patient autonomy and the secrecy surrounding these practices, not only amounts to battery, but is also endangerment of the patients as it effectively reinforces a rape culture, a culture that reinforces that women's subjectivity is not important, that it is ok to lie to women in order to gain access to their bodies, then hospitals leave women sedated and in male care, unsupervised by female staff.
In our culture at large, more within the medical culture, and even more yet in the military culture, women are raped and abused.
Medical and nursing boards, including in the state of Oregon have a poor record of protecting patients, including allowing offenders to continue to practice.
The military suffers a higher rate of sex offenders than the general population. Factors including, the male dominant environment, an environment known to range from unfriendly to hostile to women, to the fact that over 80% of offenders in the military are given honorable discharges and hiring preference in the V.A., to the fact that VA staff enjoys an extraordinary high level of protection from patient responses to abuse, and over half of all physicians are trained at least in part on veterans, violations of patient autonomy and the super exploitation of female patients is almost guaranteed to be systematic. Such violations of female patient autonomy and cover-ups establish an environment dangerous to female patients. The V.A. is and has long been aware that they have established an environment unresponsive, negligent, abusive, even denigrating to women. The V.A. is a hostile environment disrespectful of women, our rights, autonomy, and dignity; absolutely abusive in nature. The V.A. knows this to be the case; yet, women are repeatedly subjected to situations (being left sedated in the hands of men, or with males having access in the absence of female supervision,) that can only be described as endangerment.
So, while the V.A. would like to claim my request for no males being involved in intimate care while I am under sedation is not reasonable, it is not only reasonable, but a request that is not uncommon even in the private sector. It is also a request that one could reasonably expect would be more common among female veterans, who suffer sexual assault and harrassment, including by medical staff, at a higher rate than women in the private sector. Also, (after thinking I must have been assaulted for a year) I read the data on V.A. failure to clean colonoscopy (and other reusable) gear, and while they can present no evidence that the equipment used in my case was correctly processed, they claim it was; how they know without paperwork, I do not know.
I made it clear prior to the administration of these drugs that I did not want males involved or present during these procedures. There is also a huge body of evidence that for a significant number of patients, gender matters when it comes to intimate care. In the case of the mastectomy, Dr. Kwong attempted and failed to acquire a drug facilitated gurney consent, as I again made it clear that my consent to these procedures was conditional upon the proviso that no males would be present or involved in my care. Given my concerns expressed repeatedly prior to these procedures regarding trainee roles, male involvement, surgical and trauma related increases in rates of metastasis, there is no reason for these physicians or this court to have to read my mind regarding the materiality of these issues to my decision. If I had been told I had no choice, or that my choices regarding trainee and male care would not be respected, I would have gone elsewhere for care. I had CAMPVA, and in spite of poor credit, had access to money through my husband's credit union if needed to cover the cap- As I would not have consented given all the Facts, material and requested, the procedures were ALL acts of battery, and in cases of intimate care acts of a very gross assault those in the medical profession are well aware women experience as acts of rape, I.e. that they are very traumatizing.
1. I would not have consented to videotaping or photographs being taken during any of these procedures, which was in the GYN surgical form I was asked to sign in absence of the capacity to read it and give informed consent. While I had not expressly refused such imaging for educational purposes, I was at no point informed of this possibility, was gurney consented for the procedure, and thus given no opportunity to read the form, and this sentence on the form was not read to me.
2. I would not have consented to trainee "observation" (which included bimanual exams) of the GYN surgery unless such "observation" was limited to All females, and no more than two in addition to the two performing surgeons. Again, being gurney consented and not being read anything about observers, I was given no opportunity to give informed consent.
3. I would not have consented to the trainees performing pelvic exams while I was under anesthesia, which I have come to learn is considered part of "observation", but not explicitly included in the consent form. Still, it is SOP at PDXVA for faculty and all trainees present, including all observers, to perform pelvic exams on women under sedation prior to GYN surgery.
4. I would not have consented to breast or bi-manual exams under anesthesia. I would have insisted all such intimate exams be done prior to sedation and limited to the performing surgeons, which was supposedly Dr. Kwong in one case, and the two GYN surgeons in the other.
4. I would not have consented to male presence in any capacity, prep through cleanup, beginning to end for any of these procedures in O.R. on 6/18/07or the endo suite on 12/12/07.
5. I would not have consented to trainee involvement in the mastectomy and associated lymph removal in terms of incision, cutting of any kind, and all major parts of the surgeries. I was concerned about surgical spread of the cancer, and expressed this concern to Oncology and Dr. Kwong. Only Dr. Kwong had my consent to perform this surgery. She can justify one assistant (not substitute) as necessary for performance of the procedure, not a couple of R1s supervised by an RIII and RIV with a litter of medical students tagging along.
6. I would not have consented to a male fellow performing the colonoscopy, nor any trainee, regardless of gender. As it was, I was not even given the opportunity to read the consent form and was not even informed of ALL the risks contained therein.
7. I would not have consented to multiple rectal exams.
8. I would and did not consent to Miller's presence or participation, and Dr. Collins admitted he was intimately involved with the procedure.
9. I would not have consented to Stephen Nobel's, presence or participation on 6/18, and even under the influence of conciliatory producing drugs did expressly refused consent in that case. In fact, I would not have allowed any males and did expressly refuse to consent to male presence and/or participation during the procedures on 6/18/07and on 12/12/07.
Harm and Proximate Cause:
In Schloendorff v. Society of New York Hospital, held that the cause of action under battery relied on the violation of bodily integrity rather than any specific harm arising from the unwanted touching. Still, more harm than good is done when patients' rights and autonomy are violated. The V.A.'s failure to obtain informed consent, their deception, manipulation, and violations are the direct and proximate causes of my suffering PTSD, their use of trainees (against my will) the proximate cause of chronic pain, their failure to inform me about the V.A.'s problems properly reprocessing reusable gear when I requested information about infection rates, the proximate cause of a HERPES II infection. And given the number of V.A. facilities failing to properly clean colonoscopy gear, and given the fact that I was told in response to a F.O.I.A. that there is no documentation of the processing of the unit used in my care, in conjunction with the facts that, my husband is not infected, and the break out pattern indicated a recent infection, renders a greater than 50% probability that my Herpes 2 infection occurred at the V.A. From the patient's perspective, there is an incredible amount of anxiety surrounding general anesthesia. Apart from the medical risks, there is the fear that while unconscious, anyone could do anything to you, and you may never learn what happened. Therefore, any deviance in that type of situation can cause years of suffering and anxiety. In cases of significant deviance, the harm may be permanent.
"Personal injury" is defined, in pertinent part, as "harm that arises out of one or more of the following offenses: assault, battery, mental anguish, mental shock or humiliation; . . . [or] invasion of an individual's right of privacy."
Professionals in the private sector and the V.A. have post these violations (including drug facilitated consents, ghost trainee involvement in medical care against patients expressed will, sexual harassment including forcing male staff and trainees upon patients against their expressed will, failure to offer patients gowns or privacy for changing,") diagnosed me with PTSD. Roseburg's PTSD screen in Feb of 2007 was negative. Prior to PDX VA violations I suffered no invasive thoughts as I do now, did not awake in a rage as I now do most every morning, was not consumed as I am now, unable to enjoy anything in life, was much more social rather than preferring to be alone, had a healthy sex life with my husband and we slept together, today we struggle to regain our sex life from the distance of separate sleeping quarters. I was more help to my family, like to go places and do things, now I just want to be left alone most of the time, yet fear being really left alone. I suffer strange triggers to anxiety, a person standing between me a light casting a shadow over me, a person standing behind and above me, loud sounds, sudden fast movement.
Furthermore the lies, degradation, and retaliation I have suffered post complaint of the violations, has caused further harm. My rights were violated in terms of informed consent and continue to be violated by the V.A.s refusal to provide full disclosure regarding my care on these dates.
Failure to diagnose and inform of medical conditions:
Records also indicate that the V.A. was aware that the patient had a thyroid condition indicating treatment, yet failed to inform patient and treat the thyroid condition. This went on for a decade. Failure to treat this condition resulted in a health condition that made it impossible for the plaintiff to finish graduate school, was a contributing factor in her G.I. problems, significant pain and suffering, resulting in a much reduced quality of life. In fact, prolonged low thyroid function is even associated with breast cancer risks.
Thus, given the non-medically indicated x-ray I was given in the U.S.A.F., given the failure of the V.A. to treat this thyroid condition, and given the fact that female veterans seem to get breast cancer at twice the rate as women in the general population; I think odds are greater than 50% that the military and V.A. were significant causal factors in my contraction of breast cancer.
In Sum:
This is a case of malpractice, but it is more than that, it is a deliberate and intentional violation of my human and civil rights, it is battery. While charges of battery were determined to be strong in the case where a physician merely failed to inform patient of risks, this should not be held to be the case where physicians do very intentionally violate patients specific limitations and provisos to consent. The fact that my rights as have been established by the U.S. Constitution and judicial history were violated by a government organization makes these acts a violation of not only my human, but my civil rights. The risks of creating PTSD in a patient as a result of physician actions and attitudes that are degrading to the patients dignity and autonomy and deterious to their rights as human subjects is not unknown to the V.A., nor is the particularly harmful effect that such practices of non-consensual intimate care have on women in general and female veterans in particular. The medical field is well aware that women experience violations that include intimate care as acts of rape. They knew the risks of harm, they knew the law, they knew the effects of the drugs. This is not a matter of incompetence, or accidental error; this is a case of deliberate battery. In fact, this is a clear cut, slam dunk case of battery. The fact that the abuse was intentional, that harm was done to me for the sake of other peoples education, is quite offensive, as well as, a violation of criminal statutes. It is also gross negligence in terms of the process of acquiring informed consent.
The V.A.'s failure to inform me of their record of failing to properly reprocess reusable equipment, and failure to do so post suffering unexplained physical trauma, and continued failure to do so in spite of their knowledge that in my mind the only conclusion I could draw is that the repeated "medical rapes", their failure to allow me the autonomy and dignity to protect myself from violation, lead to a sexual assault. This was mental torture, continues to serve as such, and the truth of the matter needs to be told. It is a moral imperative, it is a legal requirement, and it is a mental health necessity. The V.A. failed to inform me of a thyroid condition they did not want to treat. The V.A. lab levels are below standard of care, according to other physicians in the field. Anemia, thyroid and other conditions that would be treated on the outside are not being treated by the V.A. While physicians in Oregon cannot be sued for malpractice for failing to provide a Medicaid patient with a service that the legislature will not pay for, they can be sued if they fail to inform Medicaid patients of the benefits from non-covered services. (Oregon Revised Statutes ÃÃ'à à .. Ãà ¬Å¡Ã à 414.725(5) [1995]).
I was not informed my TSH indicated I could benefit from treatment.
Notice of this disagreement also serves as a request for the following discovery.
1. All statements made by any personnel or staff or other person present during any of the above procedures or consent processes.
2. Sign in/sign out records for ALL OR rooms (names of patients are obviously not needed, save my own), at the PDX VA on 6/18/07.
3. All video, audio, digital, written or other materials produced during any of the above procedures.
4. Records of ALL medications or drugs administered in pill form on 6/18/07 prior to my being taken to holding.
5. Records of ALL medications or drugs administered on 12/12/07 prior to my being taken to the Endo room.
(note: ORS 677.089 (2) requires the record keeping of dispensing of drugs, so this should be available.)
6. Records of the reprocessing of the specific unit used for my colonoscopy, or a statement as to the absence of these required records.
7. All and any other medical, legal, administrative, educational, student, or other records of any kind that have anything to do with me, my health care, my complaints, or research in which I may have been a subject.
While F.O.I.A.s may be limited in that you do not have to produce documents, my right to know who was present during such intimate procedures is not so limited. You are required by law to tell me the truth about who provided risky and/or intimate care, and therefore to produce these documents. Therefore, in the name of my civil and human rights, I hereby once again demand the names of every person present during any part of prep or the procedures on either of the above dates, the names of those involved in my care in any capacity, and the roles each person played.
While I previously asked for seven million in settlement, that was prior to:
1. Rejection of my claim.
2. Further retaliatory abuse.
3. Continued obstruction of my mental health care and healing process by refusing disclosure.
Thus, I am now asking for 10 million, and in light of further trauma, added stress, and delayed healing, reduced quality of life,"all effecting not only my mental but my physical health and likely drastically reducing the number of years I have left to live, based on research on stress and cancer recurrence, if this has to go further to trial or hearing, I will be seeking 20 million.
Plaintiff,
Mary Birmingham
541-956-1513
