Whether medical malpractice was the cause of Joan Rivers’ death is the question that will be addressed by a wrongful death lawsuit Melissa Rivers plans to file against the doctors who treated her mother. Although the case has some unusual aspects, it raises issues that are commonly resolved by malpractice claims.
The facts surrounding the tragic death of Joan Rivers are unclear. Two investigations have been launched by city and state regulatory agencies in New York to determine the cause of her death. Our sympathies are with Melissa Rivers, who was understandably upset to learn that her mother’s death may have been caused by medical negligence. Allegations of improprieties and malpractice raise serious questions that might only be resolved through litigation.
Medical malpractice is the negligent act or failure to act by a healthcare provider that results in harm to a patient. In New York, as in most states, a doctor is negligent when he or she fails to provide the same standard of care that comparable doctors in the same community are expected to provide to their patients. For example, if a general practitioner fails to make a diagnosis of cancer that should be diagnosed by reasonably careful general practitioners in the same community, that doctor has committed malpractice.
Ms. Rivers died after an endoscopy was performed by a gastroenterologist to diagnose the cause of her sore throat and hoarse voice. A camera was inserted into her throat during that procedure. There is no suggestion that the endoscopy caused Ms. Rivers’ death.
Witnesses allege that Ms. Rivers’ personal physician, an ear, nose and throat specialist, then began to perform an impromptu biopsy on her vocal cords. Investigators have theorized that Ms. Rivers’ vocal cords became swollen during the biopsy, preventing oxygen from entering her lungs and triggering the cardiac arrest that resulted in her death. Ms. Rivers died about a week later without ever regaining consciousness.
Several potential legal issues arise if those allegations are true. First, if the biopsy caused unexpected swelling, it may not have been performed according to accepted surgical standards. Second, the physician who allegedly conducted the biopsy was not certified by the clinic to conduct that procedure. Moreover, the prevailing standard of care requires biopsies to be conducted in hospitals rather than clinics. Had the biopsy been performed in a hospital, it may have been possible to respond more quickly and effectively when Ms. Rivers stopped breathing. If the doctor who performed the endoscopy permitted the biopsy to take place, that doctor and the clinic may have been negligent, as well as the physician who performed the biopsy.
In addition, Ms. Rivers’ physician allegedly failed to obtain Ms. Rivers’ consent to the biopsy. Except in emergencies, no surgical procedure can be performed unless a patient is informed of the risks of surgery and consents to the procedure. The physician may have been negligent if, as witnesses claim, she performed a surgical procedure without the informed consent of her patient.
Investigators are also investigating the possibility that Ms. Rivers was given Propofol, the powerful anesthetic that caused the death of Michael Jackson. If an overdose of that drug was administered or if Ms. Rivers was not properly monitored after the drug was given, the clinic and the responsible physicians may have been negligent.
Although it has not addressed the specifics of Ms. Rivers’ case (which it cannot do without violating laws that protect the privacy of medical records), the clinic denies that any vocal cord biopsy has ever been performed at the clinic. It also denies that it has ever given general anesthesia, including Propofol, to a patient.
The witness statements and preliminary results of the ongoing investigations apparently convinced Melissa Rivers that malpractice occurred. It may be necessary for a jury to resolve the factual disputes, although the clinic and the physicians (or their insurers) may want to settle the lawsuit if it appears that the evidence of malpractice is stronger than the clinic’s denial of wrongdoing.
The most startling allegation in Ms. Rivers’ case is one that a jury may never hear. Witnesses report that Ms. Rivers’ physician took a “selfie” (a picture of herself) with Ms. Rivers while Ms. Rivers was under anesthesia. While taking her picture in a private place without her consent was arguably an invasion of Ms. Rivers’ right to privacy, the photograph probably did not contribute to Ms. Rivers’ death and may therefore be of no relevance to the lawsuit. The doctor denies taking the selfie.
If true, the allegation does suggest the physician’s shocking disregard for the dignity of her patient. While it is the kind of evidence that the family’s lawyer would want the jury to hear as evidence of the doctor’s state of mind, it is unclear whether the court would allow evidence of the selfie to be presented in a trial.
In most states, a wrongful death claim can be pursued by a surviving family member when the death is caused by the negligence of another person. Unlike many states, New York does not allow a surviving family member to recover damages for the loss of companionship of a deceased parent or for the survivor’s mental anguish or pain and suffering caused by the death. New York does allow children to seek damages for the loss of parental guidance and nurturing, although that loss is likely to be greater when the children are minors.
Compensation Melissa Rivers (and possibly other family members) might recover includes:
Unlike some states, New York permits survivors to recover for the conscious pain and suffering endured by the deceased as the result of the negligent act that produces death. Since Ms. Rivers never recovered consciousness, that category of damages appears to be inapplicable in her case.
Ms. Rivers’ loss of income will be measured from date of her death through the end of her probable life expectancy, as measured by standardized tables. Although Ms. Rivers was 81 years old, she was an active entertainer. While damages for loss of income are often limited when the deceased is elderly, Ms. Rivers was reportedly earning millions of dollars each year from her appearances on Fashion Police and on the QVC Shopping Network. Melissa Rivers may therefore recover a substantial verdict or settlement if she is able to prove that medical malpractice was the cause of her mother’s death.
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