This is one of the most common defenses seen in surgical complication cases here in New York.
What a patient suffers significant injury following surgery, if a lawsuit is brought claiming that the surgeon violated the basic standards of medical care causing harm and injury, the surgeon and his attorney will almost always argue that the injury was a direct result of a known risk that can occur with this type of procedure.
The defense will always argue that there are inherent risks to any surgical procedure. That is true.
- There is a risk of bleeding.
- There is a risk of infection.
- There is a risk of injuring an adjacent organ.
- There is a risk of perforation.
All of these are true.
However, there are many instances where a patient's history should make the doctor recognize that some of those risks and injuries that would flow from them can be minimized and reduced.
In some instances the risks will outweigh the benefits of proceeding forward with surgery.
During pretrial testimony, when I have an opportunity to question the surgeon, I will always ask about the risks associated with this particular surgery. I will then ask if he discussed those exact risks with the patient.
Then I will ask specifically about the type of injury the patient suffered and whether that specific injury and risk of that injury was discussed with the patient.
The mere fact that a patient signed a consent form that has preprinted information saying that there are risks of surgery, is not a license to the doctor to violate the basic standards of medical care.
- The physician is still obligated to perform surgery in accordance with good and accepted surgical practice.
- The surgeon is still obligated to minimize and reduce the risk of injury and to perform the safest procedure possible.
In a case I handled not long ago, a woman had blurriness one one of her eyes.
Her eye doctor strongly recommended that she have cataract surgery.
This woman fully trusted her eye doctor. She had no reason not to. He always did the right thing by her.
She agreed to have cataract surgery.
Following cataract surgery she could not see.
She no longer had any usable vision. The ophthalmologist who performed her cataract surgery kept making excuses for why she no longer had vision in her eye.
The one excuse that kept repeating itself was “Unfortunately, this is a known, recognized risk of the procedure.”
The reality, is that statement is true.
However, in this case, the records revealed that this patient was never a candidate for cataract surgery to begin with. Had the doctor performed a proper and full evaluation of this patient prior to aggressively recommending she have cataract surgery, he would have recognized that she was definitely not a candidate for cataract surgery.
Here, the ophthalmologist failed to minimize and eliminate the risk to the patient by advising her to have the surgery when instead good medical practice dictated that she not have the surgery.
The mere fact that a patient suffers a complication following a surgical procedure may not always be evidence of improper medical care.
The patient may suffer a known complication that can occur. The next logical question that often arises is whether the patient was told by the doctor that this injury was a risk of the procedure.
In most cases, the physician did tell the patient that the injury they suffered from could be a risk of surgery.
A patient usually remembers many details associated with the informed consent discussion. It is often the physician who does not remember the specifics. Why is that?
Because of the number of patients he sees on a daily basis and how many surgeries he performs each week. That's why the surgery consent sheet given to the patient for signature has preprinted information on it. That's why there's often one or two lines left empty for the doctor or his assitant to fill in the blanks about the most obvious risks of the procedure.
Another harsh reality is that if patients truly knew all the risks of every surgical procedure, even anesthesia risks, they would never agree to have surgery.
There is obviously a fine balancing line that a physician walk when deciding which of those risks he feels are important for the patient to know, and which are insignificant. However, from a patient's standpoint, if you ask them after the fact, whether they would have gone ahead with this particular procedure had they known that this injury was a risk of the surgery, they will always say no.
Did the doctor say it or not?
In many medical malpractice cases in New York, a patient will claim the doctor didn't tell him about a specific risk of surgery. In contrast, the surgeon will always argue that he did in fact tell the patient about the specific risks.
That sets up a he said/she said situation where a jury will often throw their hands up in the air, unable to determine who said what. They will then have to determine who is more credible...the learned physician or a patient who is seeking compensation.
One of the best ways to overcome this type of defense is to have a board-certified medical expert able to testify that the only reason this injury occurred was because of a violation of the basic standards of medical care, and not because this was an inherent risk of the procedure.
Our surgical expert will have to testify that if certain things have not been done, or been done correctly, then this patient never would have experienced this type of injury and complication.