What can be done regarding an injury suffered by a patient due to an experimental treatment that was used on them without their consent?
Question Details: Somone I love dearly had a stroke caused by the radiologist during carotid stenting. While a consent was signed that stroke was possible, we were told 1-2%, we didn't know that the radiologist wasn't going to use dystal embolic protection; he never told us verbally or mentioned it in a consent form. Later we found out from the insurance company that their claim was denied due to not using dystal embolic protection.They stated that the procedure was considered investigational,experimental and unproven. How can I present it to an attorney? Attorneys don't like to work much on the case that doesn't guarantee a 100% win, so won't even try. By searching different articles I found that the use of embolic protection techniques during carotid angioplasty and stenting is currently a standard of care. Interventionalists almost uniformly use an embolic protection device carotid artery stenting, EPD designed to reduce the risk of stroke caused by thromboembolic material dislodged during carotid stenting. Given the contemporary level of acceptance of embolic protection, any routine carotid stenting done without embolic protection should be done only with the institutional review board's approval and patient's consent.
You present the case to an attorney the same way you presented it here: the radiologist failed to use the standard protective measure which are well known, would have been simple to apply/use, and whcih would have vastly reduced the risk of a stroke. That formulation shows that what the doctor did was negligent or unreasonably careless, since he failed to take basic steps to avert a potential tragic outcome.
Another key factor though is the identity of your loved one. Wrongful death claims are largely based (not entirely, but largely) on the lost economic or earning potential of the deceased, since it deprives their family and dependents of support. There is a huge difference in potential award (winnings from a lawsuit) for a, say, 40-year-old who was earning a good salary, since he/she had decades of significant earnings ahead of him or her, and a retired elderly person. For example, and ignoring the "time value of money," interest, etc., a 40-year old earning $100,000/year could easily earn another $3mm+ if she/he works until age 70 or so; a 67-year old on $12,000/year of social security might reasonably only receiving another $120k - $150k in benefits given an average life expectancy. Since malpractice cases are typically taken on a contingency basis, where the attorney receives a percentage (say, for sake of discussion, 30%) of the award, in the one case, the attorney might make $1.2mm; in the other case, perhaps only $40-$45k. Malpractice cases can take a great deal of time for a lawyer, can take years to resolve, can be costly for the law firm...a lawyer might well not take a malpractice case given the possibilty (not the guaranty; no case is guaranteed) of earning only $45k after years of work. So if your loved one's age and economics did not suggest a large possible award, you have trouble interesting a lawyer.