Common Defenses Used in Missouri Medical Malpractice Cases - Putting the "Known Risk" Defense in Context
As a St Louis Missouri medical malpractice lawyer, one of the most common defenses I hear is that the injury the patient suffered is a "known risk" or "complication" of the procedure, therefore, to cause the injury is not medically negligent. Complications are not always like side effects, which are unavoidable in certain situations and result without negligence. May times complications are unavoidable and not the result of negligence, however, just because a certain complication is a known risk of the procedure does not absolve the doctor of any negligence. Inattentive mistakes (medical negligence) is a "known risk" of surgery, inattentive mistakes are a known risk of just about anything we do, but they are still mistakes.
Lets take for example Gallbladder removal operations, the defense is often that injury to the common bile duct is a known risk of the procedure so its not negligence to cause the injury. So, does mistaking the common duct for the cystic duct and then cutting it not negligent? or putting and leaving clips on the common bile duct not negligent? Obviously that is negligence. Maybe a situation where the surgeon nicks the common duct and then realizes his error and corrects it appropriately, then I would agree, it is not negligent.
Malpractice defense lawyers love to argue that it is a known risk or complication, the doctor had no bad intent, and he was doing his best. Despite the fact the rules of surgery were broken. A known risk of most operations, or anytime you go under general anesthesia, is death. So if the surgeon is negligent and the patient dies is the health care provider absolved from any Missouri wrongful death action simply because death is a known risk of a procedure? Of course not, it is a known risk but may have been caused for avoidable or unavoidable reasons.
Lets put the "known risk" defense in context with something most of us do everyday, driving. Every time we drive anywhere it is a known risk that we may be in a car accident and suffer injury.
It is a "known risk" (complication) every time you drive through an intersection that someone may run a red light and hit you broadside.
It is a "known risk" (complication) that another driver could drift across the center line and cause a head on collision.
It is a "known risk" when you stop at a red light or stop sign an inattentive driver could run into the rear of your car. In fact this is a very well known risk as it is the most common type of motor vehicle accident.
We take on a "known risk" (complication) of possibly being in a car accident every time we drive.
So, since the above situations are "known risks" of driving does that mean the other driver that did not follow the rules of the road, was therefore negligent, and caused the car or truck accident resulting in personal injury should not be held accountable? because it is a known risk (i.e. complication) of driving? Of course not!
A personal injury lawyer must make these distinctions clear to a jury, as they, like most people, are not familiar with medical terms and rules, and when they hear "known risk" or "known complication" they are trying to be tricked into believing that is a get out of jail free card for the health care provider. Injury attorneys need to clearly explain the difference between known risks and unavoidable side effects. I like the analogy of the rules of the road above to dispel the know risks defense, then to further explain, unavoidable complications are like medicine side effects, if you take Aspirin, you may get stomach pain, not because someone was negligent, but it is an unavoidable complication or side effect that can occur.