All medical negligence attorneys deal with cases in which a surgical error or mistake caused great injury or even death. The difficulty is in proving that the surgeon was negligent. The mere fact of a bad outcome does not establish negligence, and the burden is on the claimant to present expert testimony that the surgeon was negligent in causing the injury.
If the injury or incident is one that ordinarily would not have happened in the absence of negligence, then the claimant can rely on the doctrine of “res ipsa loquitur.” In essence, this Latin phrase means “the thing speaks for itself.” However, in most cases the claimant still needs expert medical testimony to establish that the mistake would not happen unless the surgeon was negligent. In addition, the doctrine only shifts the burden to the defendant to offer a non-negligent explanation for what happened.
In most cases, unless the error is egregious, the defendant and his/her experts will testify that the particular harm is a “known risk” of the surgery and will cite studies about how it can occur in a certain percentage of such surgeries. These case studies or reports may be describing the percentage that was actually the result of negligence, but establishing that is also difficult at best.
A classic example – and one that is often seen by a malpractice attorney – is a laparoscopic abdominal procedure that results in an initially undetected bowel perforation. A bowel perforation is not an acceptable outcome, but surgeons will tell you that it can occur even in the best hands. If it is a small hole or a burn from a cautery tool, it may not open up and lead to peritonitis (infection of the peritoneum) for several days.
If not caught early, it can result in the patient’s death. In many instances, one cannot establish that the surgeon was negligent in causing the bowel perforation, but only that the patient complained of post-operative symptoms suggesting peritonitis and she/he was not seen emergently to treat this dreaded complication.
One thing a plaintiff attorney most dreads is the defense expert who looks like Doc Welby in the old TV series and presents as a careful and prudent physician. If that expert testifies that he has also had this bad event occur in his surgeries and he was not negligent when it happened, juries are inclined to give the defendant doctor the benefit of the doubt. This is especially true when the defense expert talks about anatomical variations and other differences in each person that makes any surgery inherently risky for some people.
