Evidence of Risk of the Procedure

A common scenario in a medical malpractice case involves a patient who undergoes a medical or surgical procedure and is injured as a result of a complication that occurs during or following that procedure. Of course, the plaintiff is not entitled to recover simply because there was a complication. The jury will be instructed that doctors do not guarantee a good result, and they are not liable unless they failed to perform the procedure in accordance with the applicable standard of care. Similarly, a defendant is not relieved of liability simply because the complication was a known risk of the procedure. If the complication occurred because the doctor was negligent, regardless of whether it is possible for the injury to have occurred even if the doctor fully complied with the standard of care, the plaintiff is entitled to recover.

Absence of Negligence

In light of these basic principles, the defendant certainly should be permitted to offer evidence, given a proper foundation, that the plaintiff's injuries could have occurred in the absence of negligence. This is necessary to counter the possible impression of the jury that the mere occurrence of the complication is evidence of negligence. Conversely, the defendant should not be permitted to offer evidence that might lead a jury to improperly infer that the mere fact that a complication is a known risk of the procedure is evidence that the defendant was not negligent in causing that complication. Statistical data that a certain percentage of patients undergoing a specific medical or surgical procedure will suffer a particular complication does not provide relevant information on the issue of negligence. This data, unless it separates complications caused by negligence from those that are not, does not tend to prove the presence or absence of negligence in any individual case.

Similarly, evidence that the defendant advised the plaintiff, during an informed consent discussion, of the risk of the harm that ultimately occurred would not support a finding that the plaintiff's injuries were not the result of malpractice. In the absence of a claim for lack of informed consent, such evidence is irrelevant. Plaintiff's counsel must be alert to these issues and file motions in limine to preclude these types of inadmissible evidence.

A Hypothetical Case

As an illustration, consider a situation involving a patient who underwent a lumbar laminectomy and spinal fusion. Prior to surgery the orthopedic surgeon explained the potential risks of the procedure, including nerve injury. The patient signed an informed consent form, which listed nerve injury as a possible complication. Following surgery, the patient developed numbness in his legs and loss of bowel and bladder control. Radiological studies showed that one of the screws used in the fusion had injured the adjacent nerve roots. The patient sued the doctor for medical malpractice, but did not make a claim for lack of informed consent. The plaintiff's expert is prepared to testify that it is beneath the accepted standard of care for a board certified orthopedic surgeon to place a screw in close proximity to the nerve roots, and that this caused the plaintiff's injuries. The defense is prepared to offer the following evidence:

• Nerve damage can occur as a result of this procedure even when the surgeon is acting in full compliance with the applicable standard of care;
• Statistical data shows that up to 2% of patients undergoing this procedure will suffer some type of nerve damage as a complication of the procedure; and
• The defendant advised the patient of the risk of nerve damage as a complication of the procedure, the patient acknowledged receiving this information by signing the consent form, and did, in fact, consent to the procedure with knowledge of this risk.

Is Negligence a Risk of the Procedure?

There is a very important distinction between evidence that a particular complication is a risk of the procedure, and evidence that this complication occurs without negligence. Evidence of the former is not relevant without the latter.

To say that nerve damage is a risk of low back surgery tells the finder of fact nothing about whether, or to what extent, the injury occurs in the absence of negligence. A defendant should be allowed to offer evidence that the complication can occur despite the exercise of due care. This is because, as stated in the Connecticut case of Hayes v. Camel, 283 Conn. 475, 484 (2007), “evidence of whether an injury might well happen even in the absence of negligence, certainly has a 'logical tendency to aid the trier in the determination of an issue'; specifically whether a breach of the standard occurred or was the cause of harm to the plaintiff.” However, in the present example, a defendant or expert should not be permitted to testify that they have seen or heard of instances in which patients have suffered nerve injuries as a consequence of low back surgery unless they know the causes of the injuries in those cases and that they were not related to any substandard treatment. Otherwise the jury would be left to speculate as to whether these nerve injuries always, never or sometimes resulted from negligence in those instances.

This discussion continues in next month's issue.

Christopher D. Bernard, a member of this newsletter's Board of Editors, is a partner at Koskoff, Koskoff & Bieder in Bridgeport, CT. His practice is primarily devoted to medical malpractice cases, including birth injuries, surgical errors, hospital negligence and physician malpractice. He is listed in The Best Lawyers in America and is a member of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America.

A common scenario in a medical malpractice case involves a patient who undergoes a medical or surgical procedure and is injured as a result of a complication that occurs during or following that procedure. Of course, the plaintiff is not entitled to recover simply because there was a complication. The jury will be instructed that doctors do not guarantee a good result, and they are not liable unless they failed to perform the procedure in accordance with the applicable standard of care. Similarly, a defendant is not relieved of liability simply because the complication was a known risk of the procedure. If the complication occurred because the doctor was negligent, regardless of whether it is possible for the injury to have occurred even if the doctor fully complied with the standard of care, the plaintiff is entitled to recover.

Absence of Negligence

In light of these basic principles, the defendant certainly should be permitted to offer evidence, given a proper foundation, that the plaintiff's injuries could have occurred in the absence of negligence. This is necessary to counter the possible impression of the jury that the mere occurrence of the complication is evidence of negligence. Conversely, the defendant should not be permitted to offer evidence that might lead a jury to improperly infer that the mere fact that a complication is a known risk of the procedure is evidence that the defendant was not negligent in causing that complication. Statistical data that a certain percentage of patients undergoing a specific medical or surgical procedure will suffer a particular complication does not provide relevant information on the issue of negligence. This data, unless it separates complications caused by negligence from those that are not, does not tend to prove the presence or absence of negligence in any individual case.

Similarly, evidence that the defendant advised the plaintiff, during an informed consent discussion, of the risk of the harm that ultimately occurred would not support a finding that the plaintiff's injuries were not the result of malpractice. In the absence of a claim for lack of informed consent, such evidence is irrelevant. Plaintiff's counsel must be alert to these issues and file motions in limine to preclude these types of inadmissible evidence.

A Hypothetical Case

As an illustration, consider a situation involving a patient who underwent a lumbar laminectomy and spinal fusion. Prior to surgery the orthopedic surgeon explained the potential risks of the procedure, including nerve injury. The patient signed an informed consent form, which listed nerve injury as a possible complication. Following surgery, the patient developed numbness in his legs and loss of bowel and bladder control. Radiological studies showed that one of the screws used in the fusion had injured the adjacent nerve roots. The patient sued the doctor for medical malpractice, but did not make a claim for lack of informed consent. The plaintiff's expert is prepared to testify that it is beneath the accepted standard of care for a board certified orthopedic surgeon to place a screw in close proximity to the nerve roots, and that this caused the plaintiff's injuries. The defense is prepared to offer the following evidence:

• Nerve damage can occur as a result of this procedure even when the surgeon is acting in full compliance with the applicable standard of care;
• Statistical data shows that up to 2% of patients undergoing this procedure will suffer some type of nerve damage as a complication of the procedure; and
• The defendant advised the patient of the risk of nerve damage as a complication of the procedure, the patient acknowledged receiving this information by signing the consent form, and did, in fact, consent to the procedure with knowledge of this risk.

Is Negligence a Risk of the Procedure?

There is a very important distinction between evidence that a particular complication is a risk of the procedure, and evidence that this complication occurs without negligence. Evidence of the former is not relevant without the latter.

To say that nerve damage is a risk of low back surgery tells the finder of fact nothing about whether, or to what extent, the injury occurs in the absence of negligence. A defendant should be allowed to offer evidence that the complication can occur despite the exercise of due care. This is because, as stated in the Connecticut case of Hayes v. Camel , 283 Conn. 475, 484 (2007), “evidence of whether an injury might well happen even in the absence of negligence, certainly has a 'logical tendency to aid the trier in the determination of an issue'; specifically whether a breach of the standard occurred or was the cause of harm to the plaintiff.” However, in the present example, a defendant or expert should not be permitted to testify that they have seen or heard of instances in which patients have suffered nerve injuries as a consequence of low back surgery unless they know the causes of the injuries in those cases and that they were not related to any substandard treatment. Otherwise the jury would be left to speculate as to whether these nerve injuries always, never or sometimes resulted from negligence in those instances.

This discussion continues in next month's issue.

Christopher D. Bernard, a member of this newsletter's Board of Editors, is a partner at Koskoff, Koskoff & Bieder in Bridgeport, CT. His practice is primarily devoted to medical malpractice cases, including birth injuries, surgical errors, hospital negligence and physician malpractice. He is listed in The Best Lawyers in America and is a member of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America.