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Presenting Evidence of the Risk of the Procedure

By Christopher D. Bernard

A common scenario in a medical malpractice case involves a patient who undergoes a medical or surgical procedure and is injured as a result of a complication that occurs during or following that procedure. Last month, we discussed the fact that the defendant certainly should be permitted to offer evidence, given a proper foundation, that the plaintiff's injuries could have occurred in the absence of negligence. This is necessary to counter the possible impression of the jury that the mere occurrence of the complication is evidence of negligence. Conversely, the defendant should not be permitted to offer evidence that might lead a jury to improperly infer that the mere fact that a complication is a known risk of the procedure is evidence that the defendant was not negligent in causing that complication. The discussion concludes herein.

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