Medical Treatment Nicole Herman, a 45-year old yoga instructor, went to see Dr. Shepherd complaining of severe migraines and blurry vision.

Week 6 Hypothetical – Medical Treatment Nicole Herman, a 45-year old yoga instructor, went to see Dr. Shepherd complaining of severe migraines and blurry vision. Dr. Shepherd performed multiple tests, including a MRI (magnetic resonance imaging) exam, and concluded that Ms. Herman had a pea-sized tumor on the left side of her brain. Two days later, Ms. Herman checked herself into Sunshine Hospital where Dr. Webber performed some more exams. He confirmed that there was a tumor on the left side of her brain that needed immediate attention. Ms. Herman was rushed into the operating room where Dr. Webber completed the surgery. A week later, Ms. Herman’s migraines became worse, so Dr. Webber completed another MRI exam. To his shock, the MRI test revealed that the tumor was still there. Dr. Shepherd began to worry that he may have operated on the wrong side of the brain. But not only that, the tumor had grown to be the size of a quarter, further endangering Ms. Herman’s life. Outraged, Ms. Herman did some research on wrong-site surgery. She soon discovered that the American Surgery Association has guidelines to prevent wrong-site surgery, including marking the surgical site in advance and taking a ‘time-out’ immediately prior to starting the operation, so other medical team members verify they have the right patient and correct site. 80% of hospitals have implemented these guidelines but Sunshine Hospital has not. Further, Ms. Herman discovered that in the last year, there were two more ‘wrong-site surgery’ incidents at Sunshine Hospital. (a) If Ms. Herman brought a lawsuit based on a claim of negligence against Dr. Webber, do you think her lawsuit would be successful? If so, why? If not, why not? What would she have to prove to be successful? (b)Does Ms. Herman have a claim against Sunshine Hospital? If so, why? If not, why not? Be sure to fully explain your answer and reasoning based on the applicable legal principle(s).