Getting a Recovery for Medical Malpractice and the Defenses of Informed Consent and Foreseeable Complications


One of the strongest defenses in medical malpractice is that the bad surgical result is the reasonable and foreseeable complication of the surgery. 

This defense is strengthened if the patient signed a consent to surgery form which states that the condition is a foreseeable risk of the procedure.

The law states that a medical doctor is not a guarantor of success.  The law acknowledges that patients may either get worse or have new conditions through no fault of the doctor.  

If a complication is a known risk of the surgery, then the surgeon will not be liable for a known complication.

Here is an example based on a client’s inquiry:

Mary Kates had laser surgery to remove a small discoloration from her cheek.

Before the procedure, Mary signed a consent to surgery form.  The consent form listed the various risk of the surgery.  Two of the risks were loss of pigmentation and scarring.

Mary noticed after the procedure that at the surgical site she lost pigment and that there was also a slight indentation.

Mary  would not have a medical malpractice case by reason of her informed consent to the surgery where she was advised that loss of pigment and scarring were foreseeable complications.

If you have a potential medical malpractice claim, please feel free to contact me at 800-581-1434 for a free consultation or write to letters@seitelman.com.

Mark E. Seitelman, 8/25/10, www.seitelman.com.

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