Quote from: kelly_aus on February 11, 2015, 04:32:06 PM
Just be aware, that if you don't disclose and have some kind serious medical issue, you may find that the doctors you never told are given a free pass on liability.. Which means no compensation..
And no, it doesn't have to be a related issue - the lack of disclosure is enough...
Quote from: Jessica Merriman on February 11, 2015, 04:39:29 PM
For proper medical care, yes you do. Like Kelly mentioned if you do not disclose and something goes wrong YOU will have to deal with it with no financial compensation.
With respect, this would appear to be an incorrect understanding of law. It's like saying that you are at fault for a car wreck because you forgot to turn off the oven at home. Yes, it's bad to leave the oven on. But it's irrelevant to the car wreck. Now if the issue was your house burning down, then you might indeed be at fault for that because you forgot to turn off the oven. And you might have a hard time recovering from your insurance carrier. That's because the oven being left on may have been related to your house burning down, but it has nothing to do with the car wreck.
Kelly and Jessica appear to be discussing tort liability for medical malpractice. Basically malpractice is negligence in providing professional services. An overly simplistic, non-legalistic explanation of legal malpractice is that the doctor messed up, you were harmed as a result, and the doctor (or the doctor's liability insurance carrier) must compensate you. But if you helped make the mistake happen, then you would be partly or wholly to blame and you would not be allowed to recover as a result.
So if you wholly or partly caused your injury by failing to disclose something, AND YOUR FAILURE TO DISCLOSE CONTRIBUTED TO YOUR INJURY, then you may be barred in whole or in part from recovering. The specifics of how that would shake out will vary from state to state depending on concepts of comparative or contributory fault that we really don't need to discuss here.
For example, lets say that I have an infected ingrown toenail. If I failed to disclose that I had previously had ingrown toenails surgically operated on, the doctor chose a treatment he would not have chosen if he had known about the past surgery, and I lost a toe as a result then my failure to disclose the information might bar me from recovering for malpractice in whole or in part. That might be true even if the doctor asked me about something, I failed to disclose because I thought it was irrelevant, and it turned out to affect the doctor's treatment decisions because the doctor thought it was relevant. For example, being on HRT might not seem relevant, but it actually might be relevant because some of the treatments for ingrown toenails do involve, for example, surgery. Being on estrogen can affect blood clotting, so knowing about HRT might affect the doctor's decision on whether to perform surgery or do anything else that would involve bleeding.
Now let's say that I'm there for the situation I actually was: removing a foreign object that was stuck in my foot. The configuration of my genitals and having had or not had SRS (or anything else having to do with my private parts) is absolutely irrelevant to the fact that there was a glass shard in my foot. If, for example, the doctor was making an incision to remove the glass and he slipped with the knife and cut my toe off, then my failure to disclose information related to the status of my genitals did absolutely nothing to cause my injury. I would have no fault for it. The fault would lie solely with the doctor for slipping with the scalpel and cutting off my toes, and so would the liability.
Now, medical malpractice law is not my specialty. So if Kelly or Jessica has a contrary legal citation, I'd be very interested in knowing about it. I do note that Kelly is in Australia, so things might be different there. But this is a basic, law school level analysis of the tort issues here and, barring a few details, it should be basically correct in any legal system descended from the UK's common law system.
So, as a practical matter, what does this mean? Answering questions truthfully is always the safest course of action. But if you ignore a completely irrelevant question, you should be fine as far as ability to recover if your doctor commits malpractice. Provided, of course, that it truly is irrelevant. You may not be qualified to decide if it is irrelevant, which brings us back to the fact that truthful answers to questions are always best. But always consult with an attorney licensed in your jurisdiction to get a definitive answer to your specific circumstances.
