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Presenting Evidence of the 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. Last month, we discussed the fact that 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. The discussion concludes herein.
Statistical Data
The defense should be precluded from offering statistical data regarding the incidence of complications, unless the underlying studies evaluated the causes of the complications and the percentage caused by negligent care. In Holley v. Pambianco, 270 Va. 180, 184-5 (2005), the Supreme Court of Virginia explained why such statistics are useless and potentially misleading. In that case, plaintiff Danny Holley suffered a colon perforation following a colonoscopy and polyp removal. The defense offered testimony showing that between one and 13 patients per 10,000 undergoing this procedure will have a colon perforation. The witnesses acknowledged, however, that the statistics contained no breakdown between perforations that resulted from negligence and those that did not. The court, faced with this evidence, found that “[t]he statistical evidence was so misleading that, for all the jury could determine, each of the perforations of the colon contained in the statistics may have been due to a physician's negligence ' . We conclude that such raw statistical evidence is not probative of any issue in a medical malpractice case and should not be admitted.” Id.
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