Too often in the world of medical malpractice, injured patients are blamed when things go wrong in a procedure. Certainly, the doctors don’t stand up, point a finger at an injured person, and say: “it was YOUR fault.” They do it more subtlety, most often through their attorneys and other doctors paid to defend the care.

One way they do it is by bring out the informed consent form the patient signed. They talk about how nothing in medicine is a guarantee, and that’s why we have these forms. We have a long talk with the patient before surgery about the benefits of the surgery, but also the potential risks. These include . . . and then the list is so long, and the print so fine, that people stop paying attention after the first 10 or 12.

And the doctor who caused this injury, through his attorneys and paid experts, gets to sit back and watch as a jury is told that bad things sometimes happens, and it’s nobody’s fault, except the patient, who could have decided not to have the surgery, and then we wouldn’t be here.

While that may sound implausible, or downright offensive, to some of you, the reason they do this is because it works.

There are people out there who analyze such a case like this: was there a consent form signed? Did it include the harm done here as a potential complication? Was it signed? Done.

To some, that is the end of the discussion. However, to others, the case is not so simple. Why?

Well, because to some folks, that doesn’t make a lot of sense.

For example, consider a simple gallbladder removal surgery, otherwise known as a laparoscopic cholecystectomy. The surgeon goes in through holes in the abdomen, takes out the gallbladder, clips the necessary adjacent vessels, and sews up the holes. A known risk of this procedure is cutting the wrong duct. A surgeon is supposed to cut the cystic duct that connects the gallbladder to another duct and finally to the small intestine. The surgeon is supposed to also cut the cystic artery. After cutting those two, and only those two structures, and then clipping them, that’s it.

However, sometimes the surgeon thinks another duct is the cystic duct, and unfortunately cuts and clips the wrong duct. Certainly, cutting the wrong duct is a “known risk” of the procedure, but think about that for a moment.

Cutting the wrong duct can happen without negligence? Maybe. Cutting the wrong duct can happen because of negligence? Certainly.

Why did the surgeon cut the wrong duct? Could she see where he was cutting? If she couldn’t, does that make it a “known risk” and therefore not negligent? Was the surgeon inexperienced at the procedure? Did the surgeon know what she was cutting? If not, did she decide to convert the procedure to an “open” procedure (like they did in the old days, opening up the abdomen for greater exposure)? If she didn’t, and decided she was probably cutting the right duct, is that a “known risk” and therefore not negligent?

Doctors don’t like being sued, and they certainly don’t like to lose. They often employ this defense, and have attorneys who hired experts to say the same thing. It is the job of attorneys working for injured people to explain to the jury that just because a complication is a “known risk” doesn’t make it acceptable practice, and that the patient never has to consent to receiving negligent care.