“Can we talk?” was the question made famous by Joan Rivers. If only she could.
Because Joan, herself, holds the essential answers to any legal actions against the doctors who treated her during a throat procedure that ultimately led to her death. Much depends on permission. Lawyers prefer the word “consent.”
Let’s begin with the “selfie” photograph which Rivers’ personal physician allegedly took with the sedated or unconscious comedian just moments before she went into cardiac arrest and lapsed into a fatal coma. Under the law, photos taken in a private place require consent. The clinic is clearly private. It matters not that the picture is never published or disseminated. An intrusion occurs the moment the “selfie” is snapped.
So, the first question is this: did Rivers consent to the photo either before or during the procedure? Doubtful, with a capital “D.” Most celebrities zealously guard their privacy, especially inside medical offices or hospitals. Rivers was famously obsessed with cosmetic surgery and exceedingly self-conscious about her appearance. Would she really want her image captured lying on an operating table, sans make-up, semi-conscious or completely knocked out? Thus, the estate of the late Joan Rivers could sue the doctor for invasion of privacy. Big time.
The second question is this: did Rivers give the doctors consent to perform, if necessary, a biopsy (tissue removal) during a planned endoscopy (visual exam of the throat with a scope)? Reports describe the biopsy as “unplanned” and “performed by a doctor not authorized to conduct the procedure at that facility.” If true, and Rivers gave no consent, then medical malpractice may have occurred, which is a fancy phrase for negligence.
The third question deals directly with negligence: did the doctors fail to exercise reasonable care during the procedure? Put differently, would a reasonably competent and skilled doctor, under like circumstances, have done what these doctors did? If the answer is no, then Rivers estate will likely prevail in a malpractice lawsuit.
Unlike the first two questions, the answer to the negligence question does not reside in the silence of the deceased. Instead, each side to the lawsuit will hire expert witnesses --learned doctors, mind you-- to provide the answer. Dressed in their best Brooks Brothers suits, they will each look the jury squarely in their collective eyes and offer completely contrary opinions. And do so with seeming conviction. It’s what attorneys call “a battle of the experts.” In the end, confused and conflicted jurors are left to rely on their common sense. Thankfully. It is one of the treasures of American justice.
Which takes us inside the jury room. Invariably, the conversation will go like this: “Does it make sense that Joan should die during such a minor procedure? C’mon, shouldn’t those doctors have prevented her death? Saved her? You don’t just die like that unless somebody screws up! They must have been negligent.”
Of course, defense lawyers will have argued what’s called “causation” --that the proximate cause of Rivers’ death was unrelated to the events inside that clinic. Good luck with that one. And yes, there are always risks with anesthesia or sedation, and Rivers may have assumed or consented to the risks. But that’s a tough sell. Patients don’t consent to bad care. Especially if a doctor deviates from a planned procedure and then snaps a “selfie” seconds before the patient’s heart stops.
A civil lawsuit may be the least of these doctors’ concerns right now. It is quite possible someone could end up behind bars. Medical negligence crosses the line into criminal medical negligence if a doctor’s conduct is egregiously reckless. Case in point, Michael Jackson’s physician who was convicted of involuntary manslaughter for administering the dangerous anesthetic Propofol outside a hospital setting and fumbling efforts to save the singer’s life. The jury found he was “grossly negligent.” There are striking similarities to the Rivers case.
Amid all the vexing legal issues and unanswered questions, the “selfie” may speak volumes about what happened that tragic day. If true, it reveals a callous indifference to the patient’s welfare, as if the doctor cared more about herself than protecting Rivers’ life.
“It’s the ‘selfie’ stupid!” That’s what Joan might say. If only she could.
Gregg Jarrett is a Fox News Anchor and former defense attorney.