What are my rights if a hospital gaveme a food additive for my son that was recalled 4 years ago?

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What are my rights if a hospital gaveme a food additive for my son that was recalled 4 years ago?

My son is 2 months old and had fluids going into his lungs when he ate. I took him to a medical center for a throat sonogram and they gave me a product to thicken up his formula; we did that for about 3 weeks and then he got a little sicker so I took him to another hospital. They informed me that the product given to me was recalled 4 years ago; I looked it up on the internet and it had been recalled. Apparently, 5 babies got sick and 2 ended up dying. Can I sue? Should I speak with a medical malpractice attorney? In Grayson County, TX. 

Asked on September 12, 2011 under Malpractice Law, Texas

Answers:

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

Answered 10 years ago | Contributor

It would be advisable to speak with a medical malpractice attorney.  Medical malpractice is based on negligence.  Negligence is the failure to exercise due care (that degree of care in this case that a reasonable hospital would have exercised under the same or similar circumstances to prevent foreseeable harm). 

You should obtain your son's medical bills and medical reports from both hospitals.  The medical report from the second hospital will provide evidence of negligence by the first hospital in providing the recalled product to use in your son's formula. 

Your claim will consist of your son's medical bills and medical reports.  Compensation for the medical bills is straight reimbursement.  The medical report will document the nature and extent of your son's medical condition and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bills.

Prior to filing a lawsuit for negligence against the first hospital, it may be possible to settle the case with the hospital's insurance carrier.  If you are dissatisfied with settlement offers from the hospital's insurance carrier, reject the settlement offers and file your lawsuit on behalf of your son for negligence against the hospital.  You will need to be appointed guardian ad litem to sue on behalf of your son.  If the case is settled with the insurance carrier, NO lawsuit is filed.  If the case is NOT settled, your son's lawsuit for negligence against the hospital will need to be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights forever in the matter.


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