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You may be a witness to your own medical malpractice case

Steven E. North, Esq. and Laurence M. Deutsch, Esq.


Patients today sometimes choose to be awake during surgery rather than being anesthetized to unconsciousness.

Where the choice exists, it is not recommended that the “faint of heart” opt for the conscious option. If a patient’s frame of reference for an operating theatre or outpatient procedure is what he or has seen on television, the reality of his or her own surgery may lie well outside that frame. The site of the operative field may cause a patient significant distress, which can be distracting for the surgeon. So too, can an overly inquisitive patient who causes a surgeon to work under a barrage of questions.

On the other hand, studies have shown that regional anesthesia has fewer complications than general anesthesia and that patients heal faster. Some studies indicate that patients may feel less anxiety about being awake as opposed to being general anesthesia from which they fear they will not awake.

And then there is this: A patient who is conscious and aware may “keep the operating personnel honest. It would be hard to conceal an untoward event if a patient witnesses the occurrence. However, should something happen that might warrant a medical malpractice case, and should the patient’s description of what occurred differ from the notes placed in the record, his or her testimony will not readily be accepted at face value. Nevertheless, a surgeon and his staff might be even more careful – and more honest – knowing that the patient is watching and listening.

In addition, an awake-and-aware patient may be able to influence who is most hands-on in the operating room. In teaching hospitals, a patient can expect that a medical resident will participate in the operation and conduct a portion of the surgery. That is how residents learn. It is a rare circumstance in which a patient can dictate that only the attending surgeon perform the operation and that residents serve as observers or in very secondary roles.

The extent to which a resident is allowed to engage in a surgery, however, may very well be modified when the patient is awake and alert, particularly if the patient has requested that a resident’s involvement is limited. There is a natural incentive for residents to want to learn by doing, but this can be pushed too far for safety. The patient’s awareness may help limit an overzealous resident or make a lackadaisical physician careful of delegating too much.

Obviously, in the matter of a serious surgery, medical considerations should be paramount. However, from a medical malpractice litigation perspective, it may actually be advisable for a patient to be conscious during the course of a procedure, so he or she can weigh in about what occurred, even although the credibility of such a witness remains an issue. For the academic who has an intellectual curiosity about the anatomical circumstances of his or her the surgery, it certainly is an experience to be had.

New York Times March 25, 2017, “Going Under the Knife, With Eyes and Ears Wide Open”