Can I sue my doctor for not treating an weeping wound immediately?

UPDATED: Sep 30, 2022

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Can I sue my doctor for not treating an weeping wound immediately?

I got surgery 2 months ago and my wound opened, so I went to my doctor. He looked at it and puss was coming out but he told me come back in a week. However, within that week I was in extreme pain and had to go to the ER. Can I sue my doctor for sending me away?

Asked on September 25, 2016 under Malpractice Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

First, what would you be suing for--one week of pain? The out-of-pocket cost of the ER visit (since you can only recover the out-of-pocket cost, not anything paid or reimbursed by insurance)? Hopefully, you have not suffered any serious, long-lasting injury or disability due to the delay, or thousands of dollars of medical costs because of it; but if you have not, there is no point in suing. You can only recover in a malpractice suit the additional out-of-pocket costs (and lost wages, if any) caused by the alleged malpractice (so the extra costs or losses; not what you would have incurred no matter what for the condition) and, for disability or life impairment lasting generally many weeks, or months, or longer, some amount of "pain and suffering." But to bring a malpractice suit, even if you were to do it "pro se" (as your own attorney--which is not recommended, of course), you would need at least one medical expert (a doctor) who would examine you, write a report, and testify if necessary. Such experts costs several hundred, if not a few thousand, dollars, if all you had was a week or so of additional pain and maybe another $200 - $400 in medical cost, you'd spend far more on the lawsuit than you'd get back.
Second, you'd have to show that the doctor was negligent or careless in his recommendation, not merely that he was wrong. The law does not require doctors to be perfect; sometimes doctors do everything right and it does not work out for the patient. A doctor is only liable if his medical care was unreasonably careless (negligent) or otherwise not within then-accepted medical care standards. It is not a given that this doctor's care was negligent: sometimes with a wound, the best advice is to leave it alone for a few days or a week and see how things develop. So the doctor may not have committed malpractice.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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