Can I sue the anesthesiologist who injured my phrenic nerve during a nerve block for rotator cuff surgery?

UPDATED: Sep 30, 2022

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Can I sue the anesthesiologist who injured my phrenic nerve during a nerve block for rotator cuff surgery?

I had an injury at work which caused me to tear both rotator cuffs. I had 1st surgery on right side a year ago. After returning to work about 8 weeks later, I re-tore the same shoulder and had to have a 2nd surgery. After this surgery I was having difficulty breathing and was short of breath. Then 3 weeks after surgery, I went to the ER by ambulance for chest pains which went across my back. I was having a heart attack. It turns out that my heart was fine; after multiple tests it was concluded that I had damage to the phrenic nerve due to the nerve block I had which caused paralysis of my right diaphragm. It is still, to this day paralyzed with no improvement. I hired an attorney 3 months ago but was just told by them that they are not taking my case. They really did not give an explanation as to why. I am a 62 year old single woman who was in good health before all this happened. I’m still out on Worker’s Comp but not sure whether I will be going back to work. The insurance company keeps sending me to different doctors and they all agree that this is from the nerve block. What should I do?

Asked on April 4, 2016 under Malpractice Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If the anesthesiologist injured your phrenic nerve due to some misapplication of the nerve block, that is most likely malpractice. And if it's going to cause long-lasting or potentially lifetime, diaphragm paralysis or impairment, with significant life impairment, you would certainly seem to be entitled to significant compensation. Legally, you seem to have quite a viable case. The reason why you may be having difficulty finding an attorney who does wants to take this is that malpractice cases are expensive to bring and can take a great deal of time; the attorneys look for not just good but enormous payouts typically to entice them to take the case (almost all malpractice attorneys work on contingency, getting a share of the proceeds). If you are not currently working and may not go back to work, that diminishes the lost income/lost earning potential recovery you might get; and based on your age, you will receive less for lifetime pain and suffering than a younger person, because a 62-year old's remaining life expectancy  is less than, say, a 40-year old's. While your case could involve what for most people would be significant compensation, due to your age and job status, an attorney used to truly huge settlements or judgments might feel there is not enough there to justify the time and effort. Keep looking, though; you will find an attorney at some point, and the case seems worth bringing. 

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