On March 9, 2012, after a one-week trial before a South Carolina medical malpractice jury, the surviving husband of a woman who died in November, 2007 just three weeks after surgery, received a medical malpractice verdict in his favor in the amount of $2.4 million. The medical malpractice claim alleged that the woman had gynecological surgery during which her bowel was perforated and the perforation was not treated properly or timely, leading to her death.
The medical malpractice defendants claimed that the risk of bowel perforation during the surgery is a known risk and that the diagnosis and treatment of the woman’s bowel perforation were timely and proper. The medical malpractice jury evidently did not agree with the defendants and found against them.
“Known Risk” Of Treatment Versus Medical Malpractice
One of the most common medical malpractice defenses put forth by medical malpractice defendants is that the “bad outcome” complained of in the medical malpractice claim is a known risk of the treatment that the patient was made aware of and assumed the risk of suffering.
Medical providers are required to obtain “informed consent” from the patient before performing medical procedures, during which the medical provider explains to the patient the proposed medical procedure and all known risks of the procedure and alternatives to the proposed procedure that a reasonable patient would want and expect to know under similar circumstances.
While there is a certain amount of risk associated with all medical treatment, and bad medical outcomes may and do occur without medical negligence being a cause of the bad outcome, it is important to recognize that if substandard medical care was a cause of the bad outcome, then medical malpractice has occurred for which a medical malpractice claim may be made.
As an example of the above, it is a known risk that anyone occupying a motor vehicle being operated on the public roadways is exposed to the risk of becoming involved in a motor vehicle collision. However, if the collision was caused by the negligent operation of a motor vehicle (such as crossing over the double yellow lines separating traffic moving in opposite directions), then the injured occupants of the non-negligent motor vehicle may bring a negligence claim against the negligent driver.
In the medical malpractice lawsuit filed by the surviving husband in South Carolina, while it may be a known risk that the particular gynecological surgery performed on the man’s wife involved a risk of perforating the bowel during surgery, the cause of the perforation may still be due to medical malpractice (that is, the breach of the standard of care by the surgeon).
The South Carolina medical malpractice jury that heard the testimony and considered the evidence during the trial from both the medical malpractice plaintiff and the medical malpractice defendants determined that the medical malpractice defendants breached the standard of care and that the breach was a proximate cause of the woman’s injuries and death (and her surviving spouse’s losses as a result).
If medical malpractice may have been a cause of your injuries and losses, then it may be beneficial to consult with a local medical malpractice attorney to investigate your possible medical malpractice claim for you.
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