What are my rights if during open heart surgery the surgeon accidentally nicked an artery which caused the procedure to take an additional 4 hours due to an emergency by-pass?

An infection was contracted during the surgery which later led to a stroke and damage to the peripheral vision and balance. Is this enough to file a civil suit?

Asked on November 10, 2013 under Malpractice Law, Hawaii


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm). 

Yes, you have a medical malpractice case.

Prior to filing a lawsuit against the surgeon, it may be possible to settle the case with the surgeon's malpractice insurance carrier.

When you are declared by the other doctor (who is treating your condition/medical complications) to be permanent and stationary which means having reached a point in your medical treatment where no further improvement is anticipated, obtain your medical bills, medical reports (especially the report from the other doctor treating your condition/medical complications) and documentation of any wage loss.  Your medical malpractice claim filed with the surgeon's malpractice insurance carrier should include these items.

Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your injury/condition/medical complications and will be used to determine compensation for pain and suffering which is an amount in addition to your medical bills.  Compensation for wage loss is straight reimbursement.

If the case is settled with the surgeon's malpractice insurance carrier, NO lawsuit is filed.

If you are dissatisfied with settlement offers from the surgeon's malpractice insurance carrier, reject the settlement offers and file a lawsuit for negligence against the surgeon.  If the case is NOT settled with the malpractice insurance carrier, your lawsuit for negligence against the surgeon must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

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