What to do if I had a total knee replacement 10 months ago and the doctor missed a hunk of cement about 11mm in size that has caused pain?

The cement was taken out 3 months ago and things are much better now. However, I was billed for the second surgery but the doctor said that he would see what he could do about the bill. I don’t think I should have to pay for the surgery and was wondering if I was also entitled to something for 7 months of pain?

Asked on September 23, 2012 under Malpractice Law, Wisconsin

Answers:

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

Answered 8 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).

Prior to filing a lawsuit for negligence against the doctor, it may be possible to settle the case with the doctor's malpractice insurance carrier.  Your claim filed with the malpractice insurance carrier should include your medical bills, medical reports, and documentation of any wage loss.  Compensation for the medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of your injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  If the case is settled with the  doctor's malpractice insurance carrier, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file your lawsuit for negligence against the doctor.  If the case is NOT settled with the malpractice insurance carrier, you will need to file your lawsuit for negligence against the doctor prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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