New York Personal Injury Law Blog » Medical Malpractice


March 7th, 2013

The Bogus “Risk of the Procedure” Defense

Law-Medicine-773369With 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.

5 thoughts on “The Bogus “Risk of the Procedure” Defense

  1. Hi – I do no think it is as bogus as you think . . .

    At the same time, I am not saying that it is cool to go in with a machete for a hysterectomy either.

    I think it is very fact specific and whether it is a known risk of the procedure hinges on several things, i.e.:

    – anatomical structure
    – co-morbidity
    – age of the individual

    An otherwise “simple” procedure may be hampered by factors that surgeon did not anticipate, but at the same time, the history of medical science has shown can happen (and of course, that it has happened before), but that it doesn’t happen frequently.

    I also agree with your hypothetical of the sponge left behind surgery too — but that way I look at it it is because of not any particular “factors” the patient presents, but rather, a “system” that is in place to ensure that no sponge is left behind.

    – Start with “x” sponges
    – procedure
    – End with “x” sponges at the count

    The count is not hampered because of any patient factors as I listed above, but the count IS hampered if the staff responsible for this count does not pay attention and exercise the degree of care that is required here. In other words, you can’t say, “Well the sponge was left in because there was a lot of adipose tissue” or “The sponge was left in because .”Sounds ridiculous, right? (Or I think it does).

    BTW: I love your blog – it is a great read! I just wanted to share my thoughts.

  2. Hm, the last part didn’t post correctly. The last part was supposed to be “The sponge was left in because (insert intrinsic patient factor here).”

    I also wanted to end that I am not trying to justify “malpractice” either – I mean, if the facts present in such a way to support that a professional (similar in background and experience) in no way would have nicked the bladder here, then sure, it is malpractice. But that is something only an independent expert can say, not those who do not practice and are not part of that professional community.

  3. It may be 1,000 percent wrong, but isn’t the mythical reasonable person also a convenient tool for convincing the jury to award damages regardless of true fault? This all-seeing, all-knowing being knows in advance the risks of every procedure and carefully weighs them, never making the decision that leads to a bad outcome. The problem for a practitioner is trying to conjure up that reasonable person when the patient is lying on the table.

  4. The problem for a practitioner is trying to conjure up that reasonable person when the patient is lying on the table.

    Close calls almost always go to the doctor. Juries hate thinking a doctor was negligent and will, if given just half a chance, look for a way to blame the patient.

  5. I think saying it as “blaming the patient” is inaccurate. Close calls can be attributed to the fact the doctor really did his or her best, it’s just that it was a bad outcome.

    Bad outcomes are not always the result of negligence, right?

    Also, I don’t like “blaming” anyone in an instance — this is because there can be a physician who has done all that he or she could have for the best possible outcome, yet something adverse still occurs to the patient and that patient gets hurt.