Lobotomy compensation

March 24, 2011 9:41 PM

Does childhood trans-orbital ice-pick lobotomy patient Howard Dully have a case for compensation based on malpractice in California?

I recently read the book My Lobotomy by Howard Dully and Charles Fleming, and after reading it, feeling quite affected by his story, got in touch with Howard to congratulate him on the book. Given that there was really nothing wrong with him when he was given his lobotomy, I asked him if he ever considered suing for compensation and he said that he hadn't and didn't know if he would be able to, legally. Could he? Should he? Is time since the operation a factor?

Are there any legal minds out there who can offer an opinion on this? If you're not a lawyer, but know something useful, by all means please share. I'm inclined to think that given the attention his story received on NPR, if he had a case, someone would have already leapt forward already to take it.

To me it seems a shame that he should struggle so hard in life as a result of this cruel action.

http://en.wikipedia.org/wiki/Howard_Dully

posted by lottie to Law & Government (6 answers total)

Well, I know nothing about this gentleman, but given that you say his lobotomy occurred in childhood, a civil suit is probably barred by the statute of limitations which governs how long someone has to file suit after becoming aware of an injury. It looks like (from a very cursory google) that it's 3 years for medical malpractice in California. That would probably be the first and most obvious hurdle to such a suit.
posted by wuzandfuzz at 10:33 PM on March 24, 2011

Response by poster: Is there any other approach he could take, legally?
posted by lottie at 10:39 PM on March 24, 2011

Another obvious angle would be Child Abuse, though the statute of limitations has long expired there, too.

The lobotomy was performed over fifty years ago, and the man who performed it has been dead for almost forty. I'm no lawyer, but those two factors seem like major hurdles.
posted by Sys Rq at 3:30 AM on March 25, 2011 [1 favorite]

This issue varies by state. In most states, an act of malpractice during childhood can still be sued on within a limited time after the child reached the age of majority. In most, there is an extension when the individual did not know or have reason to know about the malpractice, but the time after that is very limited. So the legal system probably cannot offer him anything.

Sometimes, this kind of thing can be the subject of a private bill for compensation. The legislature can recognize a grievous wrong and provide for compensation. But with the economic mess California is in right now, this would be unlikely to succeed.
posted by megatherium at 5:07 AM on March 25, 2011

My understanding is that lobotomies were always considered risky when they were done. There was never a guarantee that they would work. In cases like this, parents would try this course of action as a desperate measure to cure whatever problem their child had. (See Rosemary Kennedy.) So I don't know if the parents signed away their rights to sue, or if it was just understood.
posted by iguanapolitico at 8:32 AM on March 25, 2011

Who would he sue? The responsible party has been dead for 40 years.
posted by mr_roboto at 11:06 AM on March 25, 2011