This was their defense.

He claimed he did nothing wrong.

He claimed that the patient simply had a bad complication.

This was a known, recognized complication, he argued.

It was a relatively rare complication.

It certainly a complication he had never seen in his career of more than 20 years practicing medicine.

That was his defense.

He was arguing that simply because he had personally never seen or experienced this particular complication, he should not be held responsible for the patient's injuries.

We had a different take on this argument.

We believe that the doctor violated the basic standards of medical care.

We believe that this patient never would've suffered these injuries had the doctor not been careless.

We agreed that this particular injury was in fact a complication from the surgery.

We also agreed that this particular complication occurred relatively infrequently.

However, the mere fact that a complication does not happen often, does not absolve the doctor responsibility.

If the complication is caused by a violation of the basic standards of medical care, the doctor should, by all accounts, be held responsible for the resulting injuries.

The issue was an important one.

It's very easy for a doctor to get on the witness stand at trial and to argue that there are always risks and possible complications associated with every type of surgery.

It's also easy to argue as a defense that simply because a patient suffers a complication during or following surgery, does not necessarily mean that there was wrongdoing.

Believe it or not, we actually agree with that statement.

What we disagree with is the doctor equting the rarity of a particular complication with his responsibility to the patient.

Let's say for example that a patient having gynecological surgery is told that one of the risks of anesthesia is death. That risk may be extremely small.

However, if the patient dies during the course of surgery because the anesthesiologist gave her an overdose of anesthesia, the defense's argument that the risk of death was small, should fail.

Here, the risk of the patient dying was extremely small for this routine GYN surgery. Yet the reason why this patient died was because the doctor violated the basic standards of medical care and gave her an excessive amount of anesthesia.

How do you think the jury will feel when they are told “Don't hold me responsible for causing this patient's death, because it's such a rare complication that can occur in any type of surgery.”

Yes, it's true that the risk of death was extremely small.

However, it's also true that the anesthesiologist had an obligation to the patient to administer anesthesia in accordance with good and accepted medical practice.

Giving a patient an excessive amount of anesthesia that leads to anesthetic complications leading to lack of oxygen to her brain, known as hypoxia, causing respiratory and cardiac arrest leading to her death is not something that ever should be associated with a risk of the procedure.

We also have to look and see whether the complication occurred was in fact preventable.

Could the doctor have taken certain steps that would have minimized or reduced or even eliminated the risk to the patient had the doctor done X, Y or Z?

Many times, we are able to support a claim that this particular risk and injury were preventable.

We do this with expert medical testimony who explains to the jury exactly why if the doctor had done X, Y or Z, this patient never would have experienced the complications that they now suffer from.

Can the doctor argue to the jury that since he has personally never experienced a specific complication from this procedure as evidence that this complication could not have been caused by improper care?

The reality is that the doctor and his attorney can use this strategy to try and minimize their exposure and responsibility.

However, the more important question is, will the jury buy this argument?

There are instances where a jury will buy into this claim.

The jury may want to believe the doctor that he should not be held accountable because this injury was a risk of the procedure, even though it was a small risk.

This argument has many holes.

Yet many jurors favor doctors who are sued especially where the doctor is kind, considerate and likable.

To learn even more about doctors who use this type of defense, I invite you to watch the video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer