If my kisney was damaged organ during surgery, should I sue?

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If my kisney was damaged organ during surgery, should I sue?

I had an umbilical hernia, so my GI doctor sent me to a general surgeon. During my first appointment with her very little was said but the procedure was explained; she would cut a half circle around my belly button and insert mesh. The surgery was scheduled. I wasn’t told a recovery time. The surgery was scheduled for a Thursday, outpatient. At work I requested the Thursday and the day after, with the weekend that would give me a total of 4 days off. I have a kidney disease, which causes enlargement of my kidneys. My medical history, including scans of the abdomen, were available to the doctor. During the prep the nurses asked about my history and I went over my extensive drug list. The day came and it was decided to do laparoscopic surgery, rather than single half circle. Just as they were taking me to surgery, my blood test for potassium came back. My stage 4 kidney disease causes my kidneys not to remove potassium properly. Before any incisions were made, they rushed me back to do an EKG. I had been given the beginning anesthesia for surgery so was barely conscious. They did panic my husband though. The IV fluids had rehydrated me and fixed the potassium levels. I was sent back into surgery. I came out with 4 holes and was still out of it when the doctor came. I remember her saying that my kidneys are impressive. I was later sent home but peed blood all night and for the next week. I called the doctor but no return phone call until the following Monday. I had been in terrible pain all weekend, scared and not sure what to do. The doctor said,

Asked on December 22, 2018 under Malpractice Law, Missouri

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

There are two issues involved in whether you have a worthwhile or viable malpractice case.
The first is liability: is the doctor (or hospital, or clinic, etc.) liable, or legally responsible for, your injuries or harm? That depends on whether they were careless or not. The law accepts that sometimes doctors do everything right, but the patient still has a bad outcome. Only if there is medical evidence (e.g. the opinion of other doctors) that the care you received was negligent, or unreasonably careless, would there be malpractice. If there was no negligence, there is no liability. 
Second is whether it is economically worth suing--i.e. how much could potentially be entitled to, in terms of compensation, and is that amount worth the cost of the suit. You can only recover for additional medical costs (your out of pocket costs, not paid by insurance) caused by the malpractice; for lost wages, due to being unable to work because of the malpractice; and, if you experienced prolonged and severe life impairment (from serious pain, from diability, etc.), some amount for "pain and suffering." Pain and suffering is very variable and subjective: every case is different, so it is hard to generalize. That said, as a very rough rule of thumb, assume you pain and suffering award might be an amount equal to 1 to 3 times the medical costs.
Malpractice suits are expensive: you must have a medical expert (doctor) examine you, write a report, and testify. Such an expert can easily cost around $1,500 to $3,000 (or possibly more). Compare the sum of your additional medical costs, lost wages, and (to approximate) an amount for pain and suffering more or less equal to 2x the medical portion to that expert witness cost--and also assume you'll have a lawyer and lose at least 1/3 the money you win to attorney's fees. That will give you a rough sense of whether the lawsuit may be economically worthwhile.
If your insurer paid for the CAT scan (i.e. no out of pocket cost to you) and you had around 2 or so weeks or pain and urinating blood, it is very likely that you would not win enough money in the lawsuit as to justify the cost.


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