Medical Malpractice Odds and Probabilities

A common game played in medical malpractice defense is the reference to odds and probabilities. The usual scenario is where the claim is made that a particularly “bad” event occurs so infrequently that the doctor can’t be blamed for it. It’s referred to as simply one of those things that can just happen. Many doctors and lawyers get caught up in this and fail to properly deal with it. Actually, it is the exact wrong thing to say and there is a full proof method of attacking it.

Not commonly understood by lawyers and never understood by doctors is the legal difference between a “known” risk and a “foreseeable” risk (sometimes also known as an “unavoidable” risk). A “known” risk is one that can happen but shouldn’t. It is “known” that a ureter can be severed during a hysterectomy but this shouldn’t happen. It is also “known” that a patient can fall off the Gurney and hit the floor during a hysterectomy but, again, this shouldn’t happen. A “foreseeable” or “unavoidable” risk is one that is known to occur and can’t always be avoided even in the best of hands and even where the applicable standard of care is complied with. Thus, the happening of a “known” complication is medical malpractice or negligence because in the best of hands it usually doesn’t happen. This means that in inferior hands it does. A “foreseeable” or “unavoidable” complication is not medical malpractice per se because it is something that can just happen even in the absence of negligence. An example might be that a person who has never had a problem taking penicillin suddenly has an allergic reaction this time. This can happen but a doctor who gives penicillin to a patient who has never had a problem with the drug has done nothing wrong.

Now, how do you trip up the opposing expert with this information such that no defense is possible? You first ask the doctor to define risks as follows;

Q: Doctor, in your opinion, what percentage of the time does an adverse medical event have to occur in your specialty before you would say it is somewhat unavoidable?

A: Most doctors will answer this by saying that if an adverse event occurs 5-10% of the time that it is considered unavoidable. So N.B. By logical extension an adverse event that occurs less than this is avoidable. (Now remember that an avoidable event is a known event as the law defines it. Thus an avoidable event is a known event and an unavoidable event is a foreseeable event). This is crucial and wins cases.

Q: Doctor, what percentage of the time does the complication at issue in the case at bar occur, both by you alone and then by all doctors in general.

A: If he clings to the fact that it is very rare (less than 5%), as they almost always do, or if this is in fact the actual statistic, then he has just lost his case without having any idea what he just did.

Q: Doctor, you previously testified a few moments ago, that a “foreseeable” or “unavoidable” complication is one that cannot be avoided even in the best of hands. And that these occur greater than 5-10% of the time. You also testified that complications that occur less than 5-10% of the time are not “unavoidable” but rather “known” or therefore “avoidable”. You now admit that your complication in this case occurs less than 5% of the time which makes it, therefore by your own admission AVOIDABLE, isn’t that correct doctor. (You should see how they squirm now). Therefore, doctor, what you did, by your own admission is commit an error that in proper hands is avoidable.

This material is worth memorizing as it wins cases. There is no way to rehabilitate a doctor expert witness who has taken this bait.