What to do about a failed intubation attempt without following protocols that resulted in damage to vocal cords?

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What to do about a failed intubation attempt without following protocols that resulted in damage to vocal cords?

My 10 month old ingested a poison and was rushed to the emergency room. The doctor attempted to intubate her without using sedation or paralytics as per protocol she had an intact gag reflex and was conscious). He was unsuccessful as she was gagging and and crying. She was later intubated by the pediatric staff from the children’s hospital with the use of paralytics and sedation. Now, she has difficulty making certain sounds. She will have tears falling and make the face, but hardly makes any sound. This has been 19 days since extubation. Is this a malpractice case?

Asked on August 18, 2012 under Malpractice Law, Tennessee

Answers:

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

Answered 8 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).

In order to determine whether or not the intubation procedure constituted malpractice, it would be advisable to have your child's medical records reviewed by another doctor.  If that doctor writes a report which supports a malpractice claim, then you should proceed with the case. 

Prior to filing a lawsuit for negligence (medical malpractice), if the second doctor's opinion supports the claim, it may be possible to settle the case with the first doctor's malpractice insurance carrier and the insurance carrier for the hospital.  Your claim would include the medical bills and medical reports.  Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of your child's injury and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  If the case is settled with both insurance carriers (doctor and hospital), NO lawsuit is filed.  If the case is NOT settled with either doctor or hospital, name both doctor and hospital as defendants in your lawsuit for negligence.  If the case is settled with one insurance carrier, but not both, only name the party with whom the case did not settle as a defendant in your lawsuit for negligence.  If you are dissatisfied with settlement offers from the insurance carriers, reject the settlement offers and file your lawsuit for negligence.  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your child because your child is a minor.  If the case is NOT settled, you will need to file your lawsuit prior to the expiration of the applicable statute of limitations or your child will lose his/her rights forever in the matter.


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