When can you sue a doctor for negligence?

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When can you sue a doctor for negligence?

My husband had a piece of glass removed from his foot. The doctor told him that the tendon was not cut and that they had removed all the glass. He got a second look and it turns out there is still glass in his foot and he severed a tendon. He now needs surgery, uncompensated time off work and it is delaying his entry into the military. Are we able to sue the doctor for negligence?

Asked on September 25, 2012 under Malpractice Law, Texas

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

Whether you can sue the doctor for negligence depends on a number of factors - some of them legal and some of them practical.

First, the practical factors.  Medical malpractice lawsuits in every state are difficult, time consuming, and expensive.  Therefore, no one should undertake such a suit unless he or she has very significant damages.  At the end of the suit, the amount of money you recover must be enough to cover all your medical expenses (pay them or repay your insurance company), attorney's fees (at least 1/3 & usually 40% or more of the total recovery), costs of litigation (expert witnesses, medical records, depositions, trial consultants, etc. - this can easily exceed $50,000 very quickly), and still leave enough money to make it worth your time and effort.  When attorneys decline to pursue cases with small damages, they are actually doing you a favor.

If your damages are significant enough, then the legal factors come into play.  Many states give special protection to ER doctors.  In some states, you have to prove that the ER doctor was more than negligent - perhaps reckless.  Many states, like Florida, cap damages for pain and suffering at a low level.  To prove that the ER doctor was negligent, your attorney would have to find an expert ER doctor to testify that an average ER doctor would have found the glass and removed it.  The expert would also have to testify either that the tendon was not cut at that time and never would have been cut if the ER doctor had removed all the glass, or the ER doctor should have noticed the cut tendon, fixed the cut tendon or arranged for it to be fixed, and the result would have been different if this had been done.  This depends on the circumstances.

As you can see, medical malpractice cases are complex.  It costs you nothing to call one or a hundred medical malpractice lawyers in your state.  I suggest you do so and obtain an opinion specific to your case and your state.

Good luck.


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