The Bogus “Risk of the Procedure” Defense
With great regularity I hear people write off bad medical outcomes as simply a “risk of the procedure.” It happened again today in an email from a company that helps lawyers find medical-legal experts. One of their experts wrote:
A 52 year old woman presented to Hospital and underwent a total hysterectomy. The surgeon perforated her bladder during the procedure….
…The question is whether perforation of the bladder is a known risk of the surgery and, if so, are there ever instances where it is nonetheless a breach in the standard of care?
That is wrong, wrong, wrong, 1,000x wrong. That is not how to frame the question.
And you can appreciate that it is framed wrong if you simply substitute a car accident for the medical procedure. Isn’t getting into an accident a known risk of driving in a car?
The fact that something is a known risk is a game that defense lawyers play. It does not simply absolve a defendant.
But the real question that a jury gets is whether the injury could have been avoided with the exercise of reasonable care. So an auto wreck may be a known risk of driving in a car, or it may not.
An example: You drive on the highway and a deer leaps out of the woods into the path of your car. This may be unavoidable even with reasonable care. Or the deer may have been standing in that spot for 20 seconds but you were busy texting while driving and didn’t see it.
It isn’t any different in medicine, and those magic words “known risk of the procedure” should set off alarm bells. Is having a sponge left behind after surgery a known risk? Yes it is. But it is also negligent because someone wasn’t keeping track of all that went into the body to make sure that all came out.
A doctor might, or might not, have been negligent in the way treatment was rendered, but the fact that something is a “known risk” doesn’t answer the question.
If you ask the wrong question, you might be lead to wrong conclusions.