What are our rights if my mom had surgery for a total hysterectomy for cancer but the cancer “came back” in her uterus and the ER doctor did a scan and found out her uterus is fully attached?

The doctor never removed her uterus. Would this be a malpractice case?

Asked on August 18, 2015 under Malpractice Law, California


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

Answered 5 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 first doctor, it may be possible to settle the case with the doctor's malpractice insurance carrier.
Your mother's claim filed with the doctor's malpractice insurance carrier should include her medical bills, medical records/ medical reports, and if applicable, documentation of any wage loss.
Compensation for the medical bills is straight reimbursement.
The medical reports/records will document that your mother's uterus was not removed during surgery and that cancer returned.  The medical reports will  be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.
If the case is settled with the malpractice insurance carrier, NO lawsuit is filed.
If your mother is dissatisfied with settlement offers from the malpractice insurance carrier, she should reject the settlement offers and file a lawsuit for negligence against the doctor.
If the case is NOT settled with the malpractice insurance carrier, your mother must file her lawsuit for negligence against the doctor prior to the expiration of the applicable statute of limitations or she will lose her rights forever in the matter.

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