How to sue for malpractice due to negligent care?

UPDATED: May 27, 2012

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How to sue for malpractice due to negligent care?

A friend of mine had a kidney transplant. During a routine follow-up exam, the doctors saw that the renal artery was narrowing thus restricting blood to the kidney. Soon after he had an angiogram and they inserted a stent into the artery to help blood flow. A day or so later he started feeling sick with flu symptoms. The doctor said that he had just caught a bug and was sick from that; they didn’t bother to check to see if there was anything wrong with the kidney. So he was told he could go home. It turns out that while being home sick, the kidney was dying from lack of blood flow because the stent had shifted not allowing any blood to flow and he lost the kidney. Is this adequate grounds for a lawsuit?

Asked on May 27, 2012 under Malpractice Law, New York


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

Answered 10 years ago | Contributor

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).

Although it would appear that there are sufficient grounds for a lawsuit, it would be advisable for your friend to obtain his medical records, medical reports, medical bills, etc. and have them reviewed by another doctor, a kidney specialist. That doctor could write a report which could be used to support your friend's malpractice claim.

Prior to filing a lawsuit for negligence, it may be possible to settle the case with the first doctor's malpractice insurance carrier.  Your friend should obtain his medical bills, medical reports and documentation of wage loss.  Your friend's claim filed with the malpractice insurance carrier should include these items.  Compensation for the medical bills is straight reimbursement.  Compensation for wage loss is straight reimbursement.  The medical reports will document the nature and extent of your friend'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 the malpractice insurance carrier, NO lawsuit is filed.  If your friend is dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file the lawsuit for negligence against the doctor.  If the case is NOT settled with the malpractice insurance carrier, your friend will need to file his lawsuit for negligence prior to the expiration of the applicable statute of limitations or he will lose his rights forever in the matter.

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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