If my wife had surgery but there was a malfuction with the equipment used for drainage and her pain was extensive, does she have a case for damages?

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If my wife had surgery but there was a malfuction with the equipment used for drainage and her pain was extensive, does she have a case for damages?

The drainage tube would not deflate and they forcibly removed it without sedation or pain meds. They also sent a letter of an internal investigation at our request and stated the equipment was defective and they did not have a procedure in place for this situation. They did offer to take $400 off of our $1600 bill. We don’t think this is resonable but would like legal advice on the situation.

Asked on April 11, 2012 under Malpractice Law, Missouri

Answers:

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

Answered 9 years ago | Contributor

Your wife could sue the manufacturer of the drainage tube for negligence and strict liability.  Negligence and strict liability are separate causes of action (claims) in the lawsuit.  This area of law is products liability.  Negligence on the part of the manufacturer is the failure to exercise due care (that degree of care that a reasonable manufacturer would have exercised to produce a product that is not defective).  Strict liability imposes liability whether or not due care was exercised.

Your wife's lawsuit would also name the hospital where her surgery occurred.  The claim against the hospital would be for negligence for not having a back-up procedure when the drainage tube failed.  Negligence is the failure to exercise due care (that degree of care that a reasonable hospital would have exercised under the same or similar circumstances to prevent foreseeable harm).

Prior to filing a lawsuit naming the manufacturer and hospital as defendants, it may be possible to settle the case with their respective insurance carriers.  Your wife's claim filed with the insurance carriers for the manufacturer and hospital should include her medical bills, medical reports and documentation of any wage loss.  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 wife's injuries and will be used to determine compensation for pain and suffering, which is an amount in addition to the medical bills.  If your wife is dissatisfied with settlement offers from the insurance carriers for the manufacturer and hospital, she should reject the settlement offers and file the lawsuit mentioned above.  If the case is settled with both the manufacturer and hospital, NO lawsuit is filed.  If the case is settled with one of the parties, but not both, only the party with whom the case was not settled is named as a defendant in the lawsuit.  If the case is NOT settled with the insurance carriers for either party (hospital and manufacturer),the lawsuit would name both as defendants.  If the case is NOT settled, your wife will need to file her lawsuit prior to the expiration of the applicable statute of limitations or she will lose her rights forever in the matter.

 


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