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Known Risk Malpractice Defense

Many are concerned about frivolous medical malpractice lawsuits. Little if any attention is given to frivolous malpractice lawsuit defenses.

Everyone realizes that doctors are human beings and sometimes the very best doctors make mistakes, as do the best lawyers, accountants, plumbers and waitresses. But it is incredible how few malpractice lawsuits are conceded on negligence. There is almost invariably some defense, no matter how ridiculous.

We faced one of these classic throw all logic to the win defenses in a deposition yesterday: the “it is a known risk excuses everything defense.”

During our client’s laparoscopic cholecystectomy (gallbladder surgery), the Defendant doctors cut the client’s hepatic duct. This was a known risk which, according to the expert, means the doctor did not commit malpractice. No matter what.

The hope of defense counsel is to confuse the jury. At first glance, it makes sense. Why would you hold a doctor accountable for a known risk? But the question in any malpractice lawsuit is not whether the injury suffered was a known risk but whether a prudent doctor would have avoided the injury with reasonable care.