If 2 of 6 titanium screws have broken in my neck since my surgery 2 1/2 years ago, can I sue?

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If 2 of 6 titanium screws have broken in my neck since my surgery 2 1/2 years ago, can I sue?

Do I have a case?

Asked on April 16, 2015 under Malpractice Law, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Normally, the medical malpractice (if it was doctor error) or product liability (if the screws were defective) statutes of limitation (or time period within which you must file your lawsuit) is only 2 years from the medical procedure in your state. However, those periods are extended when the injury or problem is not immediately detectable. So as long as you did not become aware of the problem within the first 6 months after the procedure, you should still have time to sue--but don't wait: consult with an attorney right away, before more time goes by.

Bear in mind that you only have a case if the medical team/doctor was careless and/or the screws were defective. If the screws broke through no fault of the doctor(s) or the manufacturer--for example, you fell; you played some rough sport and they broke during the sport; you were in accident or someone hit you in the head/neck--they would not be liable.

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

Answered 6 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).

IL has a two year statute of limitations in a medical malpractice case; however, that can be extended to 2 years from the date you knew or should have known you had an injury and that it was negligently caused.  Even with the two year extension, the lawsuit cannot be filed more than four years after the negligent act.  Therefore, you should file your lawsuit for negligence as soon as possible because if the applicable statute of limitations expires, you will lose your rights forever in the matter.

You should obtain your medical bills, medical reports, and documentation of any wage loss.  Your medical malpractice claim should include these items.  Compensation for the medical bills 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.  Compensation for wage loss is straight reimbursement.  Your damages (the amount of compensation you are seeking in your lawsuit for negligence against the doctor)  should include those items.

If you can do so without risking the expiration of the applicable statute of limitations, 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 the above items (medical bills, medical reports and documentation of wage loss).  If the case is settled with the doctor's malpractice insurance carrier, NO lawsuit is filed against the doctor.  If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file your lawsuit.

If you are claiming that the screws are defective, you have a product liability claim against the manufacturer of the screws.  Product liability includes causes of action (claims) for negligence and strict liability.  Negligence is the failure of the manufacturer to exercise due care to produce a product that is not defective.  Strict liability is liability imposed whether or not due care was exercised.

You will need to file your lawsuit against the manufacturer of the screws prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.  This statute of limitations may be different than your medical malpractice statute of limitations.  Depending on the applicable statute of limitations, there may or may not be sufficient time remaining to try to settle the case with the insurance carrier of the manufacturer of the screws.  Your claim would include your medical bills, medical reports, and documentation of any wage loss as discussed above with regard to your medical malpractice case.  If the case is settled with the insurance carrier for the manufacturer of the screws, NO lawsuit is filed against the manufacturer.  If you are dissatisfied with settlement offers from the insurance carrier, reject the settlement offers and file your lawsuit for negligence and strict liability.  Again, if the statute of limitations is approaching, file your lawsuit without trying to settle the case with the manufacturer's insurance carrier because if you miss the statute, you will lose your rights forever in the matter.

You will file one lawsuit in this case naming both the doctor and manufacturer of the screws as defendants.


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