Can I make my surgeon pay for my next surgery?

I fell and broke my ankle about 6 months ago, my own fault. I had surgery but was still in pain. After surgery, I only had follow-up visits with the PA and he told me all was fine and that I might always have some pain and numbness but released me 2 months ago. I just went to another surgeon for a second opinion. He said I shouldn’t be in pain as my bones are completely healed and looked good. However, on the side where he put screws in one is sticking out too far when it should be flush with the bone and this will cause pain. The only way to relieve it is to either have it removed or have it screwed in more so another surgery. He also said maybe too much hardware was put in but then he stopped talking. He said the only way that he could see relieving all my pain was to remove all the hardware. I have a plate on the other bone. This will cost me money and pain all over again so I thought I would see if there was a chance I could get the surgeon to pay for it. I know it’s a long shot.

Asked on December 21, 2018 under Malpractice Law, Oklahoma

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

If, as appears may have been the case based on what the second surgeon stated about the screw sticking out too far or too much hardware being put in, the care you received was negligent, or unreasonably careless, it would have been malpractice. Malpratice could allow you to recover additional medical costs caused by the malpractice (e.g. to correct it) and possible some amount for the pain and suffering you have been experiencing.
But malpractice cases can be very expensive and complex to bring (among other things, you have to pay for a doctor to examine you, write a report, and testify, and that can cost many hundreds or a few thousand dollars), so depending on the out of pocket cost to you of the second surgery, it may or may not be worthwhile economically. You should consult with a malpractice attorney to see if you have a case worth pursuing.


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