Abstract
The purpose of this chapter is to remind the clinician that, although destructive nerve blocks may bring the patient welcome pain relief, they are dangerous. Their danger stems not only from their anticipated side effect—unwanted concomitant nerve destruction—but also from their unanticipated, unwanted, and unexpected further spread. Unless the clinician impresses on his patient these side effects and the possibility of spread, the clinician is likely to surprise or to anger his patient. It is the surprised or angry patient who is likely to seek redress by legal means—a lawsuit.
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References
Restatement, Second, Torts § 1. Contract Defined: A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance ofwhich the law in some way recognizes as a duty. American Law Institute Publishers, St. Paul, Minn., 1965.
Restatement, Second, Torts § 6. Tortious Conduct: The word tortious is used throughout the Restatement of this Subject to denote the fact that conduct whether of act or omission is of such a character as to subject the actor to liability under the principles of the law of Torts. Comment: a. The word tortious is appropriate to describe not only an act which is intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent as creating an unr easonable risk of inv asion ofsuch an inte rest, but also conduct which is carried on at the risk that the actor shall be subject to liability for harm caused thereb y, alth ough no such harm is intended and the harm cannot be prevented by any precauti ons or care whi ch it is practicable to require. American Law Institute Publi shers, St. Paul, Minn., 1965.
Warranty . . . A promi se that certain facts are trul y as they are repre sented to be and that they will remain so, subject to any specified limitations . Black’s Law Dictionary, West Publishing Co., St. Paul, Minn., 1979.
Second, Torts § 299A. Undertaking in a Profession . . . : Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession ... is required to exercise the skill and knowledge normally possessed by members of that profession . . . in good standing in similar communities. American Law Institute Publishers, St. Paul, Minn., 1965
See footnote 3 above
(a) Restatement, Second, Torts § lOA. Consent: The word consent is used . . . to denote willingness in fact that an act or an invasion of an interest shall take place . (b) Restatement, Second, Torts § 892. Meaning of Consent: (1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. American Law Instirute Publishers, St. Paul, Minn., 1965.
Restatement, Second, Torts § 21. Assault: (1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension . . . . American Law Institute Publishers, St. Paul, Minn., 1965.
(a) Restatement, Second, Torts, § 18. Battery: Offensive Contact: (1) An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person , or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results. (2) An act which is not done with the intention stated in Subsection (l ,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and , therefore, would be negligent or reckless if the risk threatened bodily harm. Comment: .. . Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person . . .. (b) Restatement, Second, Torts, § 13. Battery: Harmful Contact: An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results. American Law Instirute Publishers, St. Paul, Minn., 1965.
Express consent. That directly given, either [orally] or in writing Black ’s Law Dictionary, West Publishing Co., St. Paul, Minn., 1979.
Implied consent. [Consent] manifested by signs, actions, or fact, or by inaction or silence, which raise a presumption that the consent has been given . Black ’s Law Dictionary, West Publishing Co ., St. Paul, Minn., 1979.
Informed consent : A person’s agreeme nt to allow something to happen .. . that is based on a full disclosure of facts needed to make the decision intelligent ly; . . . Ze Bart h in Swedish Hospital Medical Cent er, 81 Wash.2d 12,499 P.2d 1, 8.
Authentication. In the law of evidence. the act or mode of giving authority or legal authenticity to a . . . record, or other written instrument, ... so as to render it legally admissible in evidence . . . . Black’s Law Dictionary, West Publishing Co., St. Paul, Minn ., 1979.
Restatement, Second, Torts. § 282. Negligence Defined: . . . [N]egligence is conduct which falls below the standard established by law for the protection of others against unr eason able risk of harm. It does not include conduct recklessly disregardful of an int erest of others. American Law Institute Publish ers. St. Paul, Minn ., 1965.
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© 1989 Kluwer Academic Publishers, Boston
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Quimby, C.W. (1989). Medicolegal Hazards of Destructive Nerve Blocks. In: Cancer Pain. Current Management of Pain, vol 3. Springer, Boston, MA. https://doi.org/10.1007/978-1-4613-0875-1_10
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DOI: https://doi.org/10.1007/978-1-4613-0875-1_10
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