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Complication as a Defense in a Medical Malpractice Case

Jul 12, 2015 | Medical Malpractice

A patient suffers serious injuries when a surgery becomes a catastrophe. The doctor on the other hand, argues in his defense that he has never encountered a complication like this before, and therefore he should not be held accountable for it happening in this instance. Can the patient’s lawyer object to this during the trial? Can the plaintiff’s lawyer prevent the doctor from telling this to the jury?

Doctor Blames it on an Unseen Complication

The doctor said it was supposed to be a routine surgical procedure. However, during the surgery, something horribly went wrong and the patient suffered serious injuries. The patient suffered complications after complications, needed corrective surgery, and had to recuperate in the hospital for weeks on end.

The patient brings a medical malpractice lawsuit against the doctor, and his lawyer has the opportunity to question the doctor during a pretrial question and answer session called a deposition. At the deposition the lawyer asks the doctor a series of questions to find out what he did and why. The doctor tells the lawyer that in his twenty years’ of experience as a surgeon, he had never ever encountered this type of complication before.

A Defense Strategy

The patient’s lawyer realizes that the doctor will be using this defense at the trial, by saying, it was a rare complication, and he had never experienced or seen it in his career as a surgeon. At the time of the trial, the doctor would say that he was not to blame since this was a routine procedure, the complication was very rare, and he had never seen it before. Can the patient’s lawyer prevent the doctor from saying this during the pretrial testimony?

The answer is no, the lawyer cannot prevent the doctor from saying this. In fact, the lawyer would want to know this information so that he can figure out what the doctor will use as a defense during the trial. The defense would be: this complication has never happened to me before so I could not reasonable predict it or do anything about it.

The Doctor cannot be Absolved of his Carelessness

However, the fact that the doctor did not encounter this complication before, does not give him the ability to absolve himself of his own carelessness. This is what the plaintiff’s lawyer will be aiming to show to the judge through legal research. If the judge agrees with the point raised by the plaintiff’s attorney then the defense attorney would not be able to use that as a defensive strategy during the trial.

On the other hand, even if the judge allows the doctor to talk about it during the trial, the plaintiff’s lawyer will still have the ability to cross-examine the doctor on this point. Through cross-examination, the lawyer will get the doctor to admit and acknowledge that merely because the doctor had not encountered this complication before it does not necessarily mean that it was not because of negligence of carelessness.

In continuing, even if the judge allows the doctor to use this line of defense, the plaintiff’s lawyer can still cross-examine the doctor and show to the jury that the doctor can still be held accountable for his actions.