Is it Malpractice When a “Known & Recognized” Complication Occurs?

Malpractice is negligence. The fact that an injury to a patient is a known and recognized complication of medical treatment does not mean that the doctor is not legally responsible for the outcome. We frequently hear from juries and focus groups that a doctor can’t be held accountable when a known complication occurs because that is not the doctor’s fault. When a bad outcome occurs it is critical that your medical-legal team is able to determine the cause of the bad outcome and whether it was a preventable and avoidable complication.

To begin with, there is no difference between medical negligence and medical malpractice. Unfortunately, medical malpractice sounds evil whereas negligence is frequently viewed as a simple failure to act as a reasonable person (doctor) would under similar circumstances. Studies and experience show that juries often feel that there is a difference between medical malpractice and medical negligence. Juries are led to believe that to prove that a doctor or hospital should be found accountable you need to prove that the doctor was “guilty” of medical malpractice. This is not the law or what the law requires. The Cleveland Ohio Medical Negligence attorneys at Mishkind Kulwicki Law are experienced in understanding what needs to be proven at trial to prevail on your behalf and to educate a jury on what medical negligence means and how the injury that occurred was preventable and avoidable.

A high percentage of meritorious cases are lost at trial because jurors are not properly educated by the attorney. To prove that an injury was caused by medical malpractice and that the doctor should be held accountable for the injury, you don’t need to prove that the doctor or hospital was guilty. A medical malpractice case is a civil action for compensation to right a wrong. This is not a criminal action; yet, so often juries are led to believe that it must be established that the doctor or hospital intended the outcome or was guilty of some crime. Yet, so often in Ohio and throughout the United States patient safety advocates like the attorneys at Mishkind Kulwicki Law are surprised by the overwhelming amount of proof that a jury expects to be provided to hold a doctor accountable for a bad outcome.

The law in Ohio requires evidence that the doctor or hospital was negligent. Medical negligence is the same thing as medical malpractice and it is probably advisable to use the term medical negligence rather then medical malpractice to avoid the preconceived idea that malpractice is different than negligence. If a doctor was negligent and his negligence was a cause of injury, then a jury should find for the patient. You do not have to prove that the negligence was the only cause, but it has to be a legal cause of proximate cause of injury.

Many cases are lost or not pursued because of the argument that an injury was a known and accepted complication of a procedure. How many of you have signed consent forms and been told that you can develop an infection, a bleeding problem, a stroke or a heart attack or the surgery may be unsuccessful or you might even die or be worse than before the treatment? Many lawyers will not look at a case if the medical literature indicates that the complication that occurred is a known and recognized complication of the procedure. Some lawyers will even admit that the consent form seems to be an airtight defense to a malpractice case. Not so.

Our job at Mishkind Kulwicki Law is to determine if the complication that occurred is reported to and thus known to occur and, if so, then we need to determine the reason for the complication. After all, isn’t that our job as patient safety advocates? Quite honestly, the use of the term “Known complication” should be banned from our vocabularies. Plaintiffs’ advocates should never use these phrases! The fact that a complication is “known” to happen tells us NOTHING about whether it happens despite the best of care, or bespeaks negligence. Getting run over by a car is a “known complication” of crossing the street, but that tells us nothing about whether a pedestrian knockdown is the driver’s fault, the pedestrian’s fault, no one’s fault, or otherwise. The medical field and the lawyers defending the doctors are skilled at using neutral-sounding language to convince juries that a complication that is reported to occur suggests that it is not the fault of the doctor when it happens. (“known complication”, “retained foreign body”, infection, bleeding etc.) The fact that a complication is known to occur and it set forth in a consent form is sneakily and subtly misleading, suggesting that there is no fault when the potential complication occurs.

A complication can be well-“known” and still be due to medical negligence or medical malpractice. In fact, the statistical incidence that a “known complication” happens may be another way of saying that this is the malpractice rate. As patient safety advocates we know that a puncture injury or an infection or a stroke can happen so the question that must be asked is not whether the complication is a recognized one but whether it was preventable given the fact that doctors know it can happen. So what we do is look to see if a complication, even though it is stated to occur in a consent form or is known to occur on occasion was preventable in your case and whether or not it is something that is usually preventable or unpreventable despite using proper procedures and techniques and due care.

If a complication is known to occur then doctors are obligated to take reasonable precautions to prevent the complication from occurring or to treat the complication timely when it does occur. Failure to take reasonable steps to avoid a known and recognized complication or to treat it timely is medical negligence and should never be permitted to excuse a doctor from being held accountable for the injury.