December 17, 2018

A Cup of Joe | Medical Malpractice Update

This week’s case presents unusual and disturbing facts in the context of a claim for medical malpractice. It involves Jane, who suffers from intellectual disabilities. Jane took her grandmother to the doctor – Dr. Mohan Sharma. During the examination, Mohan sexually assaulted Jane.  Jane called the police and Mohan was arrested and criminally charged with endangering the welfare of an incompetent or physically disabled person in the first degree, and sexual abuse in the second degree. But the criminal case was dismissed because Mohan was found to be incompetent.

Jane’s lawyers then sued Dr, Sharma and the medical facility for medical malpractice. The case went to trial. Here is testimony that the jury heard:

JANE: I remember going to see Mohan. My nanny— we had to go for a urinary and blood test for the results. And my nanny had a bug bite on her arm and we were in the room. So he called us in. He called us in the room and he said to have my nanny sit down on the bed and I said "Like on the side?" And he had her face the wall, to check her back with the thing....The heart stethoscope. And he was—had her face the wall, he would go to me and give me like tongue out like this and he started unzipping his pants and [exposed himself].

ATTORNEY: What happened next?

JANE: He was trying to make me forced of touching him and doing disgusting things to me and he, eventually he 'semened' on my pants and on the floor.

Jane then testified that she was able to take a video of his actions by pressing "record" on her phone. That video was shown to the jury.

To prove medical malpractice a plaintiff must prove (1) that the defendant deviated from accepted standards of medical practice and (2) that such deviation proximately caused the plaintiff's injuries. But here there was no treatment. However, the court noted that a doctor’s conduct can be malpractice where it bears a substantial relationship to the rendition of medical treatment. Also, Jane’s presence in the examination room was related to her diagnosis and treatment because she was interacting with a doctor. Finding out about medical tests would include treatment in a broad sense. There is little question, then, that Jane’s status as a patient placed her in the exam room at the time that the sexual abuse occurred.

The jury was told that it was to determine whether Dr. Mohan Sharma was impaired by a mental disability at the time of the alleged incident or should have been aware of his disability, and whether his continued practice constituted a deviation or departure from accepted practice of the profession.

Jane was awarded $700,000 for past pain and suffering and $300,000 for future pain and suffering for the upcoming ten years. One million dollars.

Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2018/2018_28386.htm

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