Wht to do if my wife had a hysterectomy and during the surgery the doctor put a clip on the urterer tube accidently?

Wife know has to wear a nephrostomy tube for a month and have a second surgery. Doctor has apologized over and over again and even offerred to pay us the 80% the insurance will pay him. Do we have a case?

Asked on August 31, 2012 under Malpractice Law, Oklahoma

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

You probably have a case, but see below.  Medical malpractice is defined in almost every state, including Florida, as deviating from the accepted or prevailing standard of care for similar physicians under similar circumstances.  In this case, the surgeon may have been acting within the standard of care when he placed the clip on the ureter.  However, leaving a clip on the ureter most likely falls below the standard of care.

Having said that, I must say the following.  Medical malpractice cases are complicated and expensive in every state.  Your lawyer will have to obtain all of your wife's medical records, and providers charge plenty for these.  The lawyer will have to hire at least one expert witness and often more than one.  The doctors who treated your wife's injuries will have to testify, and they usually don't want to testify.  Sometimes, they say things to cover up what the other doctor did.  Doctors and their insurance companies defend these cases aggressively.  In more than 30 years of practice in Ohio, Kentucky, and Florida, I have never seen a malpractice insurance company offer to settle a case without a fight.  The moral of this story is that bringing a medical malpractice case is not easy.  It is not cheap, and it is not quick.

If you call a medical malpractice attorney about this case, they will likely hesitate to accept it.  This is because an attorney must recover very substantial damages for you and your wife to justify the time and expense of bringing the suit.  If they don't recover this kind of money, they don't do you any good.

If you called me, I would suggest that you and your wife continue with treatment and see how she does.  I know her injuries are painful, inconvenient, and embarassing.  Quite frankly, if treatment resolves her problems without any permanent injury, I would probably recommend that you do not pursue a medical malpractice case.  This is because, without a permanent injury, it is unlikely we could recover enough in damages to justify the cost of the suit.

There are two things you should watch about this.  First, if you accept any money from the doctor, he will want you to sign a release.  If you sign the release, you will not be able to bring any kind of suit later.  I would advise you not to sign a release unless you are sure you will not want to sue the doctor later - i.e., you are sure your wife has recovered and will not have future problems.

The second thing is the statute of limitations.  The statute of limitations in Ohio expires after one year.  In Florida, it expires after two years.  Other states have different statutes of limitations, but in every one you have to consult a lawyer and take action before this statute runs out or your claims will be barred forever.

I have probably said more than is necessary, and I hope it helps.  Good luck.

 


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