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Experience:  Civil litigation attorney for individuals and businesses.
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Is it considered medical malpractice or criminal battery for

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Is it considered medical malpractice or criminal battery for a surgeon to operate on his own child in his home without the informed consent of the other parent, when sharing joint legal custody? Is it acceptable for the surgeon to give informed consent for his child if he is the one performing the surgery? Or does that indicate some type of conflict of interest?

William B. Esq. :

Dear Customer, thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

The parent is authorized to consent or give authorization for the child's medical treatment by any licensed medical provider (which would ostensibly include the parent themselves) under the following Mississippi code section: http://www.mscode.com/free/statutes/41/041/0003.htm

William B. Esq. :

Medical malpractice occurs when the physician performs the surgery or other medical procedure below the standard of care for a similar physician or medical provider in the same or similar situation.

Customer: Would that include performing the surgery in his home instead of a hospital or clinic setting?
William B. Esq. :

It may, but to create an actionable claim, the child must suffer an injury due to the negligent act.

Customer: His wounds became infected and he had not received the usual antibiotic treatment.
William B. Esq. :

That would be grounds for a medical malpractice claim. However, the fact that the surgeon happens to be the child's parent likely means that the parent is immune from suit due to parental immunity. However, this does not mean that this does not constitute a basis for a complaint to the medical board, or possibly a child abuse claim.

Customer: Thank you so very much! I have spoken with three other attorneys by phone and you are the first to give me some direction. I really appreciate it.
William B. Esq. :

You are welcome. I do wish you the very best of luck (and I truly hope the child recovers rapidly).

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