Do I have any recourse due to an improper placement of an external fixator device on my foot?

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Do I have any recourse due to an improper placement of an external fixator device on my foot?

It was placed to increase the length, thru daily turning, of the fourth metatarsal bone. I had this done last month so that I would be done with it before the 19th of next month, the date of my daughter’s wedding. The doctor told me it would take about 8 weeks to get 30mm of bone length. I did everything the doctor told me and finally got to 30mm extension and the rod fell off. I had X-rays done today and there has been no movement at all. Tomorrow the rep for the device is bringing a new rod to attach to my foot so I can start all over. This is just so frustrating and I don’t know what to do.

Asked on August 24, 2015 under Malpractice Law, Texas

Answers:

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.
Prior to filing a lawsuit for negligence against the doctor, 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 your medical bills, medical reports and documentation of any wage loss.
If the rod itself was defective,you would also have a negligence claim against its manufacturer.  The manufacturer has a duty of care to produce a product that is not defective.  If the rod is defective, you also have a claim against the manufacturer for strict liability.  Strict liability means the manufacturer is liable whether or not due care was exercised.
The same information you are sending to the malpractice insurance carrier, you would also send to the rod manufacturer's insurance carrier if the rod was defective medical bills, medical reports and documentation of wage loss. 
If the case is settled with both insurance carriers, NO lawsuit is filed.
If the case is settled with one, but not both parties doctor and manufacturer, only name the party with whom the case has NOT settled as a defendant in your lawsuit.
Compensation for the medical bills is straight reimbursement.  The medical reports will determine compensation for pain and suffering, an amount in addition to the medical bills by documenting the nature and extent of your injury.  Compensation for wage loss is straight reimbursement.
If you are dissatisfied with settlement offers from the insurance carriers, reject the settlement offers and file your lawsuit for negligence against the doctor, negligence and strict liability against the rod manufacturer if the rod was defective.
You file one lawsuit naming both parties doctor and rod manufacturer as defendants.  There are separate causes of action claims against the doctor for negligence, and against the manufacturer for the separate claims of negligence and strict liability.
If the case is NOT settled with the insurance carriers, your lawsuit must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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