Virtually every claim for surgical negligence is first met with the defense that the screw-ups were a known risk of surgery. This is indeed the reason for the very lengthy release of liability a patient is forced to sign, usually just prior to surgery. From this, the surgeon and hospital will yell “gotcha” it was a known risk right there clear to see in the fine print of the release. The good news for patients is that in New Mexico, these rarely mean a thing in case of surgical malpractice.

Surgery Centers Claim Known Risks for Inexcusable Negligence

There has been a trend toward surgery centers since the 1970’s. They pop up all the time. As of now, there are close to 6000 surgery centers nationwide taking in more than $4 billion per year. Unfortunately, I could not determine the exact number in New Mexico. However, a google search will quickly illustrate that there are many. So, the first question is what is a surgery center? The New Mexico Administrative Code 7.11.2.9 defines them as:

“Ambulatory surgical center: means any distinct entity that operates exclusively for the purpose of providing surgical services without anticipation of overnight stay of patients. This type of facility may be integrated with the surgical department of an existing hospital and its outpatient department utilizing many of their services and resources. Those facilities which are freestanding may provide some services such as specialized diagnostic and laboratory by agreement or contract with another health care provider.

Simply put they are typically freestanding clinics or centers that focus entirely on out-patient surgery. Historically, they focused on very simple routine surgeries such as colonoscopies and tonsillectomies. Over the years, they have expanded to much more complicated and risky surgeries including all varieties of orthopedic surgery. For too many of these surgery centers, the decision to operate outside of a hospital environment is to avoid hospital service costs to increase profits. Rarely is a drive for profit in healthcare beneficial to patient safety. Surgery centers are a glowing example of the dangers in profit driven healthcare.

The plain fact is that surgery centers generally not equipped to handle even routine surgical complications. Lack of facilities, equipment and staff to handle surgical emergencies leads to catastrophic consequences for seemingly minor surgeries including the aforesaid colonoscopies and tonsillectomies, not to mention the more risky surgeries. And when these occur, you guessed it, the surgery center pleads “known risk”.

Consent is No Excuse for Negligence in New Mexico

New Mexico Jury Instruction 13-1105A addresses the consent and release nonsense hoisted on pretty much every patient:

“The fact that a doctor communicates the inherent and potential hazards of a proposed [procedure] [treatment] does not necessarily mean that those hazards, should they arise, are not the result of negligence in performing the proposed [procedure] [treatment].”

There are known risks of surgery such as perforations of adjacent organs and structures, consequent internal bleeding and clotting, and resultant aneurysms and suffocation related to the bleeding. Interestingly, doctors and surgical centers yell “known risk” just as we yell “known risk”.   As you will see, our argument holds up better in court.

These centers call 911 thousands of times per year to handle their messes. Worse still, when emergency crews arrive, surgery centers are not always prepared to receive them. Our argument here is yes, this was a known risk and you were unable to handle it when it occurred as expected. In fact, on this basis, we would argue for punitive damages relying on the fact that the center chose to forego safety measures, facilities, and equipment in the face of known and dangerous risk in order to enhance profits.  This is the very definition of reckless disregard for the safety of a patient.

Duty to Refer Patients to Another Doctor or Facility

Under federal law, surgery center doctors are allowed to refer patients to their own facilities instead of a hospital. It has been estimated that this approach by the doctor can double profits. It is not clear if any costs savings are even passed to the patient or if the doctor pockets it all. That sure is an interesting question that will come up in discovery (collection of evidence and questioning of the surgeon and center). I think we all know the answer so this is purely rhetorical.

Again, New Mexico has an answer to this problem as well. Jury Instruction 13-1103:

“If a treating doctor knows, or should know, that a doctor with other qualifications is needed for the patient to receive proper treatment, it is the duty of the treating doctor to tell the patient.”

Naturally, the surgeon and surgery center would here argue, “wait, that doesn’t say there’s a duty to refer to another safer facility”. To that, I’d say “not so fast”, there’s more to this story as embodied in Jury Instruction: 13-1104B which creates a duty to inform a patient of “that information which a reasonably prudent patient under similar circumstances would need to know about:

  1. the patient’s condition; [and]
  2. the alternatives for treatment; [and]
  3. the inherent and potential hazards of the proposed treatment; [and]
  4. the likely result if the condition remains untreated.”

How many of these releases state, and how many of these doctors and centers inform patients of the risks of surgery at that particular surgery center? In other words, let’s look for the language in the release that says something to the effect that “in the case any one of the many known risks stated above does occur, there’s a good chance you will die because 911 will not get here in time to help you, and frankly we are not equipped to handle these complications.”

Again, this was strictly a rhetorical question.

When They Yell “Known Risk”, You Yell “Lawyer”

Far too many people are suffering catastrophic injuries and death at profit driven surgery centers. When these happen, the family is often met with a shrug of the shoulders and a few sympathetic words to the effect that it just couldn’t be helped, these things happen, it was a known risk. The surgeon and the center simply wipe their hands of the tragedy keeping their fingers crossed that the family does not call a medical malpractice attorney.

Don’t buy the nonsense excuses, call an attorney to figure out what happened, why it happened, if it could have been prevented, if it should have been prevented and lastly what were the decision-making motives that led to the catastrophic outcome? Chances are the “known risk” defense is simply a cynical ploy to avoid responsibility and maintain profits.