Do I have a case against a podiatrist who did not perform the operation that I agreed to?

I entered the hospital due to Diabetic infection in both feet. During my stay, a podiatrist informed me he would need to do surgery to remove two bones from my left foot. I consented to the surgery as I realized that removing the bones is safer than leaving them in the foot once they are infected. However, during the operation, while I was unable to consent, the podiatrist decided to remove a tendon and leave the bones untouched. Although he initially said the X-rays and MRI showed the ones infected, once he was in he decided they weren’t. After a bone scan, I found out the bones actually are infected, so I again requested an operation to remove the bones. Even though the infectious disease doctor decided it was a great idea and called it a smart thing to do because it would “cure” the issue. However, because the first podiatrist does not accept Medicaid, I was transferred to another doctor who decided not to do the surgery. Do I have a case against the first podiatrist for performing an operation that did not fix the issue even though I consented and was lead to believe the bones would have been removed?

Asked on September 9, 2011 under Malpractice Law, New Hampshire


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

It would be worthwhile for you to consult with a medical malpractice attorney, since you may have a claim. Malpractice can come about in many forms, from a wrong diagnosis, to choosing to perform the wrong procedure, to not obtaining informed consent, to doing the right procedure badly, etc. From what you write, malpractice may have been committed against you in one or more ways, and if so, you could potentially collect additional medical costs, lost wages, and pain and suffering (including for any impairment you have suffered). Since every medical malpractice case is different and the facts are critical, without consulting in person with an attorney, it is impossible to say with certainty whether you do or do not have a case--but from what you write, it would definitely be worth your time to consult with a lawyer. Good luck.

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