A woman who has Tourette’s syndrome may proceed with her lawsuit against a surgeon who declined to repair her injured shoulder because of her disability, the state Supreme Court ruled.
The doctor performed surgery on Carol Cutting’s injured shoulder but opted not to repair her torn rotator cuff because he thought her uncontrolled arm movements linked to her disability would cause the repair to fail.
The problem was that he never explained that to Cutting until after the surgery was over, preventing the patient from knowing all the options and risks, and having any say in them, said her attorney, Laura White.
“Essentially, he never had an informed consent discussion that explained that she would be treated differently than other patients,” the attorney said. His behavior was discriminatory and offensive to the patient, she said.
A message was left seeking comment from an attorney for the defendant, Down East Orthopedic Associates.
Cutting had lost several procedural decisions in federal court, including a claim under the American’s With Disabilities Act, but a judge kept alive her malpractice lawsuit filed in state court.
The Maine Supreme Judicial Court unanimously upheld the state judge’s decision. With the ruling, the lawsuit will proceed in Superior Court in Bangor, where Cutting resides, White said.
Tourette’s Syndrome is a nervous system disorder causing sudden and uncontrolled movements or sounds, called tics. Sometimes that can mean blurting out words, facial tics or constant throat clearing. In Cutting’s case, she had vocal and motor tics that included occasional arm movements and pointing.
The doctor said after the surgery that a repair of the torn rotator cuff would have been “guaranteed to fail” because of her uncontrolled arm movements.
The doctor’s decision left her in severe pain for several years until her rotator cuff was eventually repaired in Massachusetts, her attorney said.
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