Attorney Erik H. Olson

Recognized or Known Risk of Procedure

On Behalf of | Jun 12, 2020 | Medical Malpractice

A risk of procedure or a recognized complication is NEVER a defense to a medical malpractice case in which the medical professional’s deviation in the standard of care caused the patient injury or death.  Terms such as “recognized,” “known,” or “accepted,” risk or complication of a procedure are not relevant to a medical negligence case in which expert testimony is required to prove standard of care.  In “exceedingly rare” cases known as the “pronounced results” exception, a plaintiff does not need to offer expert testimony regarding the standard of care because a jury is capable of determining medical negligence without the necessity of expert testimony.  See Zarate-Martinez v. Echemendia, 332 Ga. App. 381, 387 (2015).  An example of the “pronounced results” exception is a case in which a patient’s lung was punctured during a shoulder muscle injection for pain relief.  Id. (citing Killingsworth v. Poon, 167 Ga. App. 653, 656 (1983)).

If a complication is “known” or “recognized” for a procedure, the injury does not qualify for the pronounced results exception and expert testimony is required to establish medical negligence.  Because bowel perforation and resulting peritonitis and sepsis are recognized and known complications of laparoscopic gallbladder and ventral hernia surgery, expert testimony is required for a plaintiff to prove a deviation from the standard of care.  The issue is not whether the injury was known, recognized or accepted.  Rather, the issue is whether the physician performed the procedure in accordance with the standard of care.  A known, accepted or recognized complication or risk of a procedure is not a defense to a physician’s deviation in the standard of care.

To illustrate further, a patient’s death after a laparoscopic gallbladder procedure is a known, recognized complication.  However, if the hair on a patient’s scalp catches fire during a laparoscopic gallbladder removal, a court may determine that a plaintiff who has third degree burns on his scalp following laparoscopic gallbladder surgery does not have to offer expert testimony to establish a prima facie case.  In the first example, the fact that death is a known, recognized complication of laparoscopic gallbladder removal does not prove or disprove whether the physician at issue followed the standard of care in performing the procedure.  In the second example, if scalp burns are a recognized, known complication of laparoscopic gallbladder removal, a plaintiff would be required to present expert testimony to prove that a deviation in the standard of care caused the scalp injuries.

Use of the terms known, recognized, or accepted in reference to medical risks or complications of a procedure misleads or confuses a jury in cases in which expert testimony is required to prove a deviation in the standard of care.  The terms “known risk” or “recognized complication” suggest to the jury that certain outcomes are accepted by law.  Adverse outcomes are only accepted when performed within the standard of care.  A recognized complication or known risk of a procedure does not excuse an adverse outcome if a deviation in the standard of care caused the injury.  Any mention of the terms “known risk or complication,” “accepted risk or complication” or “recognized risk or complication” confuses the jury to believe that any deviation from the standard of care is excused or permitted by law.