Do I have any legal rights against a surgeon if I have to have the surgery repeated?

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Do I have any legal rights against a surgeon if I have to have the surgery repeated?

I had surgery recently and the surgeon was supposed to “shave down the back of the calcaneus” and clean up the back of my heel to reduce achilles inflammation. I was off 6 for 6 weeks. After continued pain and a second opinion, I found out he only shaved part of the calcaneus (the side he could see). He didn’t use the best technique to properly visualize the back of the heel. I now have to have a second surgery to shave the calcaneus. It’s now 8-10 weeks off work and I don’t have enough vacation balance (used time with 1st surgery). Do I have any legal recourse since he only did “halfway” cleaned the heel up?

Asked on May 7, 2012 under Malpractice Law, Missouri

Answers:

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

Answered 9 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).  The second opinion you received may be sufficient to support your malpractice claim against the first doctor.

When you complete your medical treatment (second surgery) and are released by the second doctor or are declared to be permanent and stationary, which means having reached a point in your treatment where no further improvement is anticipated, obtain your medical bills, medical reports and documentation of wage loss.  Prior to filing a lawsuit for negligence against the first doctor, it may be possible to settle the case with the first doctor's malpractice insurance carrier.  Your claim should include the medical bills from both doctors, medical reports from the second doctor and documentation of any wage loss.  If the case is settled with the first doctor's malpractice insurance carrier, NO lawsuit is filed.  If you are dissatisfied with settlement offers from the first doctor's malpractice insurance carrier, reject the settlement offers and file your lawsuit for negligence against the first doctor.  If the case is NOT settled with the first doctor's malpractice insurance carrier, you will need to file your lawsuit for negligence prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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