Sunday, 3. December 2006, 09:43:06
Ok, here's another verdict from the
Norwegian Supreme Court:
The plaintiff is a fifty-three y/o female nurse. She's had a goiter for years, and in 1998 she began developing problems with swallowing; so the opted for surgery.
The whole left lobe and most of the right lobe of the thyroid gland was removed. The operation was performed by a junior doctor (under training) and by a senior doctor (one of the most experienced endocrine surgeons in this country).
Befor the operation, the patient was informed that there was a high probability that she after the surgery would have to take Thyroxine tablets for the duration of her lifetime. She was also advised that there was a slight risk of damaging the recurrent laryngeal nerve.
She was not, however, advised that there was any risk of damage to the parathyreoid glands (for the non-medical reader, four tiny - match-head sized - glands more or less embedded in the posterior part of thyroid gland proper, their function is to regulate calcium and phosphate uptake and excretion).
What is more, in the written records of the operation the junior doctor specifically states that she has seen and "avoided" one of there parathyreoid glands. She does not, however, write anything about the other three.
So now Murphy's law comes into effect. The patient did develop hypocalcemia after the surgery. This hypocalcemia was so profound, that it was assessed that all her parathyreoid glands must have been damaged or removed during the surgery.
In the year 2000 the government gave her a full diability pension.
The NPE (the government's no-fault patient injury compensation institution) refused to compensate her for this loss of parathyreoid hormone during two appeals. So the matter went to court.
The genius in the system is, that when three, four or five independent medical experts have given their opinion (as happens in the NPE), and the plaintiff still isn't satisfied, she can go to the judge - with no medical knowledge at all - and get another verdict. So here goes:
In the lower court the NPE lost, and - in addition to a non-specified compensation to the plaintiff - had to pay her legal costs as well.
The case was appealed to the upper court: Again the NPE lost.
Why? Because - and there are lessons to be learned here - the records only mentioned one parathyreoid gland. Therefor the court decided that no attempt had been made to find the other three (that is, they couched their words somewhat, stating that is was highly improbable that they hadn't identified them, but that it was the written record that was the evidence, and they acted according to this only).
This is yet another example of what she
shysters lawyers call "inverted burden of evidence" - that is, in cases of alleged medical malpractice, it is the defendant who must prove himself innocent, not the other way around.
Is this the case in other countries as well?