How can I determine ifI have a malpractice case against my doctor?

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How can I determine ifI have a malpractice case against my doctor?

I had surgery on my right foot last June. The joint below my big toe was removed and an artificial joint was inserted in its place. I have had no pain in the surgical area but have been faced with a huge amount of other problems. I am a teacher and missed 11 days of school because of my foot. I had to use a slipper instead of a regular shoe because of pain in the foot. My big toe is now at least one inch shorter than it’s original size before the surgery and as a result my second and third toes take the weight of my step and are constantly fracturing. The doctor offered to take bone out of both the second and third toe to balance the foot better but I would end up with a shorter foot compared to the other. Each step I now take is in pain. Both the second and third toe are also numb from the constant fracture. Do I have a case of malpractice with this doctor?

Asked on July 14, 2011 under Malpractice Law, Illinois

Answers:

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

Answered 10 years ago | Contributor

It would be advisable to get a second opinion from another doctor in the same specialty (I assume your doctor is an orthopedist). 

In order to have a case for malpractice, you will have to prove negligence on the part of the doctor.  Negligence is based on 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).  That is why it is important to obtain a second opinion and have that second doctor review your medical records and the medical treatment you received.

If you have a case for malpractice based on the second doctor's opinion, the medical reports will document the nature and extent of your injury and will be used to determine compensation for pain and suffering.  Compensation for pain and suffering is an amount in addition to the medical bills.  Compensation for the medical bills is straight reimbursement.  Compensation for documented wage loss is straight reimbursement.

If you have a case for malpractice, your claim would consist of the medical bills, medical reports, and wage loss.  It may be possible to settle the case with the doctor's insurance carrier by submitting these items and negotiating a settlement with the insurance company.  If you are dissatisfied with settlement offers from the insurance company, reject the settlement offers and file your lawsuit for negligence against the doctor.  You will need to file your lawsuit for negligence prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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