Sue?

Hello all,

Currently I'm in rehab trying to regain strength to walk without a cane or walker. So far I'm doing ok. There's a courtyard which has bricks, cobblestones, grass, and the paver stones you see in a garden. I'm able to walk across them without looking too drunk. Today was incredible hard. In order to get sprung, I have to be able to get myself off the floor. Today-not even close. PT tells me that it's one of the hardest skills to learn, so don't get too frustrated. Still, it kills me that something I didn't even think about in May, is something that leaves me lying on the floor.

I can't believe I missed an entire summer.

So-a number of medical professionals have been adamant that I should sue the surgeon. I went in for a quick procedure and ended up with 12. Yes, he did fix my original swallowing problem, but nicking my spleen and bowel was definitely not the plan. I ended up with a trach and a lengthy icu stay, transfer to another hospital, and now at a inpatient rehab center.

What do you guys think? I do have a friend who sued her dad's nursing home, and they settled out of court.

I just don't know if I really have a case.

It would be premature at this point to know if you will have any permanent damages. What attys look for in medical malpractice cases are the permanent damages as a result of x,y&z. When it's a surgical situation they look at potential risks & complications of the surgery, during surgery was the dr operating under substandard care & that sort of thing. Very difficult cases this is why a vast majority of them are declined not enough damages or no negligence.

Most MM firms have someone in the medical field that reviews the medical records. Medical records are supplied by the potential client because of the cost factor involved. They don't want to pay for the records on a case that they do not know they will take. Once reviewed if something was done wrong they hire an outside & usually out of state expert to review the records & write an opinion of where things went wrong. Experts costs thousands of dollars, not uncommon to pay $10,000.00 for his review alone. This doesn't count his expenses if a case goes to trial. I am only telling you this to give you a quick ample of of the preliminary costs immediately before ever getting into litigation. This is why attys have to weigh the permanent damages to the cost factor to perfect a case. The numbers have to balance out. Its not as simple as sending a dr a letter stating a claim is being pursued against him.

The insurance companies have no motivation to settle out of court. They have their own in house lawyers on a salary & they have deeper pockets than any atty.. They know juries are no longer sympathetic & view the claimant as another reason insurance premiums are so high.

I am in no way trying to discourage you, however, it is not as simple as what the average person thinks. It would take up too much space here for me to explain just the basics & I know the owner of HW pays for our space.

While you say your drs are saying suing this dr you can bet not a one of them would ever testify against him. That doesn't happen they will not go against a peer in that setting. This is exactly why medical experts have to be hired & brought in.

You can go online for your state & check to see what the statute of limitations are for medical malpractice claims. Once you get released from rehab usually you can get a free consult with an atty for his opinion.

Take care.

It's mainly been the nurses have brought it up.PT brought it up since I'm so close to discharge.

i hate confrontation

I have a care conference Tues. i'll see what comes out of that.

Since I do not know all of the specifics of your medical treatment or what you believe your surgeon's deviation from the applicable standards of care are, I can only make general comments and provide you an example of what I believed was medical malpractice by the orthopedic surgeon who performed my second right (dominant arm) shoulder/arm surgery in June 2016. Also, I work in the Insurance/Finance industry and as part of my job, I am tasked with determining if a business (including hospitals, nursing homes, physicians, etc...) have been negligent, reviewing medical records, IME reports, depositions, etc... One other person who commented on your question was spot-on when he/she said that pursuing a medical provider for medical malpractice can be extremely difficult and I can tell you it is VERY expensive for you (the patient or Plaintiff if a lawsuit actually ever gets filed).

In general with all negligence cases, the following applies: A person who alleges negligent medical malpractice must prove four elements: (1) a duty of care was owed by the physician; (2) the physician violated the applicable standard of care; (3) the person suffered a compensable injury; and (4) the injury was caused in fact and proximately caused by the substandard conduct. The burden of proving these elements is on the plaintiff in a malpractice lawsuit. To simplify, (1) Duty must be owed to you in the first place, (2) duty breached, (3) compensable injury (many states REQUIRE permanent injury) and (4) Injury is causally related to the breach of the duty owed. With my own belief of medical malpractice in the State of Ohio where I as well as the surgeon resides, I faced a plethora of insurmountable obstacles including but not limited to: (1) the statute of limitations/every state has one for each different tort; in Ohio, medical malpractice has a 1 year statute of limitations with some exceptions such as date of discovery; (2) Tort reform - even if I prevailed in my lawsuit, my damages (the money I would receive for so-called pain & suffering was capped at $250,000 unless it was a catastrophic injury and then it was still only $500,000; (3) Very expensive & risky for me to file a lawsuit, retain expert witnesses to prove the alleged medical malpractice; I was looking at paying up to $100,000 for medical experts just to pursue the med mal case and if I would have filed a lawsuit & probably would have lost - I would be stuck with the cost of medical experts; (4) my medical experts as well as my plaintiff attorney would have to be from out of the State of Ohio because the qualified plaintiff attorneys were "conflicted out" as they had a working relationship with my surgeon since plaintiff attorneys handle med mal cases but they also handle personal injury cases and the attorneys that I consulted with stated that I would NEVER find another physician in the State of Ohio to "stab another doctor in the back" by testifying against my surgeon; (5) comparative negligence - the defense attorney could & would have argued that my surgery was unsuccessful because of my pre-existing condition & prior surgery; any comparative negligence applied to me would reduce any settlement if I did win or possibly even bar me from recovery at all.

I also find it perplexing that a number of physicians have told you to sue this other doctor. I have never heard of that happening except maybe a chiropractor (who treats accident victims) and I don't even consider a chiropractor a "real" doctor because they are not. M.D.s or D.O.s simply do not throw other physicians under the proverbial bus because then that makes them a target and their referrals from other doctors would dramatically dry up to nothing.

You indicate a friend sued a nursing home and settled out of court. I'm only guessing but I suppose your friend may have alleged nursing home neglect or something to that effect. With medical malpractice, settling out of court is a rarity. Medical malpractice insurance gives the insured aka the physician the exclusive decision-making authority to settle or to take the case to trial. This is because it is not a simple auto insurance claim; med mal claims have an long-lasting, negative impact on the physician, his/her reputation, etc...so the physician will fight tooth & nail and their med mal insurer will foot the bill.


I never filed a med mal lawsuit in relation to the orthopedic surgeon who performed my 2nd surgery because even though I had medical reports from the 3rd orthopedic surgeon who had to fix the mistakes "implying" that the 2nd surgeon screwed up. That was all I had was records that "implied" med mal by the prior surgeon. My 3rd surgeon refused to directly state verbally or in writing that my prior surgeon butchered me. In Ohio, you practically have to die (in which case, your Estate sues) or lose a limb or two before you have a med mal case that a reputable attorney will undertake.

You should certainly consult with a reputable, qualified med mal attorney but if he/she promises you the moon and it sounds too good to be true then odds are that it is too good to be true. After Tort Reform, most states make it extremely difficult even for patients with the proverbial "slam dunk" case to get a dime.

The PI's are hired to do what is called an activity check. The insurance companies do this on workers comp claimants, auto accidents, long term disability claims, any claim the person claims injury. They have done this for many, many years. A good one can go undetected & I have viewed many of these on our clients.

Medical malpractice cases are very difficult to prove. This is why most are rejected. As we use to say, unless the person died because of negligence not much chance to have a claim. When you have to pay an expert right up front to review medical records & write a report showing where a dr erred that involves lots of money.

The good news is you are on the road to recovery, money can't make that happen.

Rocckyd:
You wrote: "Now I am super confused as to what my next step should be."

Look at your son. Your most important reaponsibility is to be the mother that he needs you to be and to provide him with the best foundation in life that you can. Your son has paid the ultimate price during your lengthy recovery. It is time to focus on your son and his needs.

As to your ongoing recovery, focus on what you can do. For all of the health challenges that I face, my body continues to do many things well. I keep my sights on what I can do and build from there. Recovery is a succession of small wins.

I would set the thought/idea of pursuing litigation to the side for the time being. You have more important things to attend to.

And, frankly, from my perspective of someone myself with a complex medical history, you would have a steep upward battle to prevail with litigation. Any one of your co-morbidities places you at a high surgical risk for secondary complications. The burden of proving gross negligence would be high and the legal process long and expensive. You would need to have deep personal financial resources of your own to begin the process of discovery.

The anguish of loss of health can never be remunerated with a financial settlement. I have never pursued legal recourse for this reason.

You also need to give careful thought and consideration as to how a legal filing would affect your current care and medical providers that you have come to know and depend on, now and in the future. Clinical professionals - physicians, therapists, case managers, nurses, et al - will be less apt to accept you as a patient with a pending legal filing.

Take time to simply "be" with yourself. What do you want your life to look like moving forward? How can you create a life of meaning and purpose within the restraints that you have? This is an important aspect that you will want to begin to explore as you transition home.

The transition home after a prolonged hospital stay is not easy. The safety and security of the inpatient setting is no longer there. The routine and structure of the day in the hospital (therapy visits, nursing care) can make coming home eeringly quiet.

The hardest aspect for me in losing my health has been losing the sense of self that I had in who I was. I was a former marathon distance runner. I loved academia and earned three masters' degrees. I always enjoyed waking up before sunrise, savoring the stillness of the morning. I would frequently be at work by 6 am and work 10-12 hour days.

Now I struggle walking around the block, my hips crumbling due to vascular insufficiency brought about by corticosteroid use. I rarely crawl out of bed by 8 am. My body no longer enjoys the morning. Joints and muscles ache and persistent nausea/vomiting occupies the morning hours.

I keep looking for the person that I used to be. I can no longer find her. It is a deeply personal and disconcerting loss.

My point being . . . Your pathway forward remains undefined. There is a lot of "work" that you will need to attend to at a personal level. Your medical and personal history would be examined under a microscopic is you were to pursue a legal challenge. My sense is that your co-morbidities would not be to your advantage. The protracted time and expenses would drain from other areas of your life and that of your son.

It is poor conduct of the nurses and therapists who have been edging you on to pursue litigation. In Oregon, this would be grounds for termination of licensing by the physical therapy licensing board. It is an egregious mis-step on the part of any therapist who had been encouraging you. In our work as physical therapists, we often work with clients who have poor surgical outcomes. It is not the role of the therapist to make a determination of fault. Most patients have preexiisting complexities that impact outcomes, multiple variables that impact recovery. Never, never would I have ever made a judgment of a surgeon and assigned fault. That is a disservice to both the patient and the surgeon to interject my personal opinion. The nurses and therapists commenting to you are not advancing your best interests.
Karen

rocckyd said...
It's mainly been the nurses have brought it up.PT brought it up since I'm so close to discharge.

i hate confrontation

I have a care conference Tues. i'll see what comes out of that.

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Good morning. Did your care conference go forward as scheduled? I was just wondering how it went for you. I hope your medical provider team has given you good news or at least a good strategy to deal with your health issues.

I don't know if you're still planning on at least "consulting" a med mal attorney but I forgot to tell you a couple of things that applied to my initial thoughts on pursuing a med mal case against the orthopedic surgeon who performed my 2nd arm surgery.

First, even getting a "free consult" is not what you think. When I phoned several med mal firms to discuss whether or not I had a viable case, I usually only got as far as the legal secretary or the paralegal taking down the basic facts by phone, she/he then relayed the information to some attorney in the firm and said they'd get back with me. Some med mal firms did get back with me and a few didn't even bother. I had only 1 med mal attorney who took my call and was willing to speak with me directly. My case was not some flaky, soft tissue minor issue; I required a 3rd "revision surgery" at The Cleveland Clinic. Due to the things the 2nd surgeon did as well as did not do, I had objective (as well as subjective) injuries, residuals, damages or whatever you want to label them and I have a tremendous amount of diagnostic tests to support my allegations. In the end, it did not matter. I was not willing to go through the stress and monetary expense of litigation when statistically speaking, I probably would have lost my case if it even made it to trial and was not dismissed by the Court based on some legal argument made by defense counsel. Money was not going to help me get better. Although I knew I had been wronged, I just chose to move on & focus on my recovery.

Second, in the State of Ohio where the lawsuit would have been filed, the Ohio Revised Code aka ORC as well as case law (case law is where determination has been made on prior lawsuits & these court decisions set a precedent) was very much biased in favor of the physician. As in my situation, an element of "permanency" was needed.

I can't remember if the med mal attorney told me or if I read it on an attorney's website or read it in my research of case law but the most absurd thing I learned that even if a doctor screws up (in Ohio, at least) & you require a 2nd surgery to remedy the injury/damage that he/she caused...if that 2nd surgery "fixes" the problem, "fixes" the problem to the point that you have no permanency then you essentially have no case because you no longer have any permanency. At that point, I gave up.