How do you know if you have a valid claim for a malpractice suit?

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How do you know if you have a valid claim for a malpractice suit?

I had my gallbladder removed after finding out that I had a gallstone. The doctor took it out and 2 hours later told me to go home. After 2 weeks I was throwing up and went to the ER with a heart rate of 220; after tests he said nothing was wrong and sent me home. Months later I went back with the same problems and he again told me that nothing was wrong. I was told to go on anti-depressants. Turns out that I have a staple that fell off and impacted and formed a cyst around my intestines 6 inches from the initial surgery. I’ve had major pain and suffering and I’m only 16.

Asked on July 31, 2011 California

Answers:

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

Answered 9 years ago | Contributor

Sorry to hear about your medical condition.

Medical malpractice is negligence which is the failure to exercise due care (that degree of care in this case that a reasonable physician in the same community would have exercised under the same or similar circumstances to prevent foreseeable injury).  The staple falling off would appear to be malpractice.  Since you are a minor, your parents should obtain your medical bills and medical reports.  The medical reports will document the nature and extent of your injuries and will be used to determine compensation for pain and suffering.  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills. 

In addition to the doctor, the hospital where the surgery occurred is also liable.  You will need to have one of your parents appointed guardian ad litem to pursue the claim and lawsuit on your behalf since you are a minor. If the claim is not settled with the insurance carriers for the hospital and doctor, a lawsuit for negligence will need to be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.  If the claim is settled with the insurance companies for both hospital and doctor, no lawsuit is filed.  If the claim is only settled with one party's insurance company, the lawsuit would be filed against the other party.

When your claim is filed with the insurance carriers, if you are dissatisfied with settlement offers from the insurance, proceed with your lawsuit.  Your claim will consist of the medical bills and medical reports and if applicable, documentation of wage loss.

It would be advisable to speak with a personal injury/medical malpractice attorney.

 

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

Answered 9 years ago | Contributor

Sorry to hear about your medical condition.

Medical malpractice is negligence which is the failure to exercise due care (that degree of care in this case that a reasonable physician in the same community would have exercised under the same or similar circumstances to prevent foreseeable injury).  The staple falling off would appear to be malpractice.  Since you are a minor, your parents should obtain your medical bills and medical reports.  The medical reports will document the nature and extent of your injuries and will be used to determine compensation for pain and suffering.  Compensation for the medical bills is straight reimbursement.  Compensation for pain and suffering is an amount in addition to the medical bills. 

In addition to the doctor, the hospital where the surgery occurred is also liable.  You will need to have one of your parents appointed guardian ad litem to pursue the claim and lawsuit on your behalf since you are a minor. If the claim is not settled with the insurance carriers for the hospital and doctor, a lawsuit for negligence will need to be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.  If the claim is settled with the insurance companies for both hospital and doctor, no lawsuit is filed.  If the claim is only settled with one party's insurance company, the lawsuit would be filed against the other party.

When your claim is filed with the insurance carriers, if you are dissatisfied with settlement offers from the insurance, proceed with your lawsuit.  Your claim will consist of the medical bills and medical reports and if applicable, documentation of wage loss.

It would be advisable to speak with a personal injury/medical malpractice attorney.

 


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 AttorneyPages.com 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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