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Medical Malpractice:  “Known Risks”
Medical Malpractice

Medical Malpractice: “Known Risks”

We all have had the experience of puzzling over a medical liability waiver. These medical waivers often list an array of potential bad outcomes, which can range from minor inconveniences to death. In the world of medical malpractice, these are referred to as “known risks.” When assessing whether a bad outcome was the result of medical malpractice, it is important to consider the procedure’s “known risks.” Unfortunately, the concept of “known risk” is poorly understood by clients, lawyers, and judges. We seek to clarify the concept here.

What Does It Mean to Be a “Known Risk?”

As used in the field of medical malpractice, a “known risk” is a bad medical outcome that can occur even if the medical care is performed reasonably. Medicine is full of “known risks.” Medicine is far from perfect; not all treatments will effectively cure the injury or disease. Treatment, whether it be pharmacological, therapeutic, or surgical, often carries risk. For example, people often contact us after developing an infection in the knee, hip, or shoulder joint following a joint replacement procedure. Unfortunately, medical science has not found a way to eliminate surgical infections, so the fact that someone developed an infection following surgery is a “known risk” of surgery. In other words, the fact that someone developed a post-surgical infection is not—in itself—proof of negligence.

Does the Fact That Something Is a “Known Risk” Mean That There Was No Negligence?

When a bad outcome is a “known risk” means that the outcome alone does not prove negligence.  However, that something is a “known risk,” does not rule out negligence either. In the example above, while an infection is a known risk of surgery, it is possible that there may be evidence that a particular patient’s infection was caused by medical negligence.  If the doctor failed to sterilize her surgical implement and the patient developed an infection most likely to have come from the implement, such evidence would support a malpractice action.  Just because infection is a risk of surgery does not mean that a doctor can act unreasonably in a manner that causes or increases the risk for infection. Take another example. Most prescription drugs have well-known side effects. Another way to think about a “side effect” is that the drug comes with "known risks." Thus, if a patient is prescribed the drug appropriately and in the right dose, but develops one of the side effects, this "known risk" cannot form the basis of a malpractice case. However, if the drug were prescribed improperly (perhaps because it is contraindicated based upon the patient’s age, medical condition, allergies, or other drugs), or if the patient overdosed on the drug, and the patient went on to experience a severe side effect, there would be malpractice. Additionally, doctors must be knowledgeable about “known risks” and closely monitor and treat a patient if one of these risks develops.  For instance, if the surgeon notices that following abdominal surgery the patient is experiencing fever, abdominal pain, and distention, the doctor must consider the possibility that there was damage done to internal organs during surgery and move rapidly to respond.

Is a "Known Risk" the Same as “Informed Consent?”

The concepts of “known risk” and “informed consent” are different, but closely related. As part of obtaining informed consent, doctors are required to disclose the known risks of a procedure. Typically these risks are disclosed on a medical liability waiver. If such known risks are not disclosed, a good argument can be made the patient’s consent was not “informed.”  If the patient would not have consented the procedure had the risks been properly disclosed, then the patient may have a malpractice claim for injuries suffered during the procedure. This is what is often referred to as a “lack of informed consent” case.

If a Doctor Discloses the “Known Risks” of a Procedure and Obtains Informed Consent, Does This Bar the Patient From Pursuing a Claim if Any of the “Known Risks” Occur?

The short answer is “no.”  This is because, as discussed above, a “known risk” can occur either with or without medical negligence.  On the one hand, where is “known risk” occurs without medical negligence, obviously there is no viable malpractice claim.  On the other, where the same “known risk” was caused by negligence, there is a viable malpractice claim.  Either way, the existence of the “informed consent” document is irrelevant.

What Is an Injury Is Not a “Known Risk” of a Medical Procedure?

If an injury to a patient is not a "known risk" of a medical procedure, that is strong prima facie evidence of substandard care. For example, if you have surgery to amputate your left leg, the risks of such procedure do not include having the surgeon incorrectly amputate the right leg. This is not a known risk, because wrong-sided surgery should never happen if the doctor is performing the procedure reasonably.

Can a Medical Liability Waiver Stop Me From Bringing a Valid Medical Malpractice Case?

The short answer is: no. In Maine, a patient cannot consent to negligent medical care. In other words, a doctor cannot ask you to sign away your right to sue for bad care. The reason for this rule is obvious. Medical malpractice suits are meant to encourage doctors to provide the safest care possible. If doctors could demand that their patients waive the right to sue, this would undermine the central purpose of medical malpractice law.

How Do You Evaluate a Potential Medical Malpractice Case Involving "Known Risks?"

When a client comes to us with an outcome that we know to be a "known risk" of a medical procedure, the first question is whether there is any evidence of negligence other than the injury itself.  Where there is no evidence of negligence other than the injury, and the injury is a “known risk,” we cannot accept the case because there will be no way to prove malpractice.  On the other hand, when there is evidence of medical negligence, the fact that an outcome is a "known risk" of the medical procedure does not preclude a case.
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