Can I sue a doctor if i had to have a spleenectomy from a colonscopy?

I almost died from internal bleeding. I was also discharged after the colonscopy by myself and I sideswiped a car after I fell asleep driving home.

Asked on November 11, 2012 under Malpractice Law, Pennsylvania

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

Although I am admitted to practice in Florida and Ohio, I have handled cases in Pennsylvania.  You may have a malpractice case, but there is insufficient information in your question to know for sure.

There are many considerations in deciding to bring a case.  I strongly recommend that you consult one or more malpractice lawyers in your area for their opinion.

No lawyer can tell you for sure that you have a case without obtaining your medical records and evaluating them with one or more expert witnesses.  It sounds like your case may involve the gastroenterologist who performed the colonoscopy, hospital or OP center staff who monitored you, and perhaps even the anesthesiologist.  I do not know whether perforating the spleen is a known complication of colonoscopy but I am suspicious about it.  Even if perforation is a known complication, it sounds like several professionals failed to identify the complication before you were discharged.  This may be malpractice.

Whether it makes sense to bring a case, even if you have one, depends on your damages.  All of your medical expenses will have to be paid out of any settlement or judgment - this means that the insurance company or government benefits will be repaid or your doctors will be paid.  Your lawyer will have to be paid a % of the recovery.  All of the expenses of litigation will have to be paid out of the recovery, and those expenses are very high.  In this case, I would estimate a minimum of $50,000 - $75,000 and likely much higher than that.  You can see from this that your potential recovery must be quite high to justify paying these expenses.  Many malpractice lawyers have to decline cases because the end result will not benefit the injured person even if they win.

For people reading this answer, I would like to add something about the reality of malpractice litigation.  Many states, including Florida, Ohio, and Pennsylvania, have special procedures for malpractice cases.  These procedures are supposedly designed to weed out frivolous cases.  In my 30 years of experience, they do not weed out frivolous cases - they make meritorious cases entirely too expensive and take too long.  When I started practicing in 1982, it was clear to every decent malpractice lawyer that you had to screen your cases.  Taking a frivolous case means you will spend hundreds of thousands of your dollars and lose.  In my opinion (and, it is just an opinion), the claims of "frivolous" are entirely exaggerated and a smoke screen to make it too expensive and difficult to bring meritorious cases.  In addition, they have not stopped frivolous cases - a motivated lawyer can get through these procedure even with a frivolous case.

Add to this the fact that every government benefits program (Medicare, Medicaid, VA, etc.) and every insurance company has a provision to recover what they spent for medical expenses.  In the end, the injured person has to repay those expenses.  Sometimes, the repayment is fair (and the injured person pays back what was paid minus a share of the attorney's fees and expenses) and sometimes it is not (and the injured person has to repay every dime that was paid with no reduction for attorney's fees and expenses).  Sometimes the injured person has to repay every dime that was paid, even if they could recover only a small amount.

Let me add one more reality about malpractice litigation (and there are even more).  In most states, the defendant doctor can blame anybody he or she wants to blame, whether that person is a defendant or not.  When the defendant does this, who do you think has to "defend" these "third parties"?  The third parties?  No.  The actual defendant?  No.  The court?  No.  Who defendants these third parties is you, the plaintiff, and your lawyer.  Do you think the third parties will cooperate with you?  No.  They want nothing to do with it.  So,  you are on your own.  Your lawyer has to hire experts to defend them and take depositions to defend them.  This increases your expenses of litigation dramatically and it makes your chances of losing at trial much higher.  After all, how easy do you think it would be to blame someone who is not there to defend themselves?

If you are offended by my description of the reality of malpractice litigation, or you don't believe me, do some research.  Look at published studies and unbiased resources instead of politicians and insurance companies.  Ask plaintiffs' lawyers about it - better yet, ask direct questions of honest defense lawyers.

I hope this helps you navigate through a potential medical malpractice case.  Good luck.

 


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