Many of the cases that we evaluate involve post-operative complications. When someone has a surgical procedure and develops serious problems afterwards, or the outcome is poor, a patient often questions whether a health-care provider did something wrong. After all, the patient knows of many people who have had the same procedure and had a satisfactory outcome. But as all malpractice attorneys know, a poor outcome, in and of itself, is not proof (or even evidence) that there was medical negligence.
When there is a bad outcome, a common defense of the provider’s insurance attorneys is that this is a “known complication” or a “risk of the procedure.” In fact, studies have shown that there is often a consistent rate of complications for the most common procedures. For example, cataract removal has a 20% chance of blurry or cloudy vision. Coronary artery bypass surgeries have a post-op occurrence of atrial fibrillation of about 24%. Hip replacements have post-op dislocation problems in about 2% of cases. One could continue the list for dozens other procedures. The defense position, of course, is that since these post-op complications occur with regularity, this means no one was negligent.
Of course, it is always possible that a provider was negligent and the caused the complication. After all, there are few studies that dive deeply into the complication occurrence rate to determine if someone made a mistake and this is why the complication occurred. When such studies are done, it is usually by a liability insurance carrier that sponsors “closed claims” surveys by members of that specialty who, not surprisingly, usually find that there was no negligent basis for the complication. Often, the problem will be blamed on an anatomic variation or unusual reaction of the patient’s body or some other factor not controlled by the doctor.
The problem is that unless the patient’s attorney can identify a specific act or failure to act on the part of the surgeon or a member of the surgical team, it is very difficult to find credible expert support for a malpractice claim. For example, a common case we encounter is an abdominal surgery that results in a bowel perforation. If not identified and treated quickly, this can lead to peritonitis and, sometimes, death from the infection. Most surgeons who have been practicing for several decades will confess that they have caused at least one bowel perforation during their career, and they do not tend to attribute this to negligence. So the “risk of the procedure” defense, bolstered by the statistics noted earlier in this past, usually prevails.
