What are my rights if I had a consultation with my surgeon for an elective procedure bit after my surgery I learned that she let someone in training operate on me without my knowledge?

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What are my rights if I had a consultation with my surgeon for an elective procedure bit after my surgery I learned that she let someone in training operate on me without my knowledge?

I am very emotionally traumatized from this. I also do not know what I really signed before my surgery. I was exhausted, tired and emotionally drained by the time my surgery came around at 4 pm. I had not eaten since the day before, was still up at 3 am before waking up to go to surgery at 8 am and waited all day for my turn. So I asked the nurse what I was signing and she just said the standard liability release allowing the hospital to operate on me. My “surgeon” (i.e. the doctor whom I thought was doing the operation) visited me for about 1 minute before my surgery. It was not mentioned she would not do my surgery.

Asked on August 1, 2015 under Malpractice Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Did the surgeon or hospital ever agree in writing to not let someone in training operate on you? If so, then doing so would be a violation of that agreement...but even if it was, you would not have a viable lawsuit unless you suffered some *physical* injury or economic/monetary loss due to the trainee operating on you. The problem is, the law does not provide compensation for being "emotionally traumatized" in cases like this--it's simply not an injury for which the law provides compensation. (Emotional distress is generally only compensated when caused deliberately, not as a side effect of other acts, such as by a pattern of stalking, harasssment, or bullying; or when you see a loved one violently killed in front of you.)

Therefore, even if there was an agreement to not have a trainee operate on you, you could not recover money if you sued unless there was also malpractice and some physical injury or problem with the treatment. 

(You can, however, try to file a complaint with the state medical licensing board, if you feel the doctor or hospital violated an agreement.)

If there was no agreement to not have another person operate on you, then legally, they did nothing wrong in the first place--unless they agreed to not having other persons work on you, they were free to do so.


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