What can be done if my daughter had unnecessary surgery?

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What can be done if my daughter had unnecessary surgery?

I brought my 13 year old daughter into an oral surgeon for a frenectomy procedure. Upon arrival to the surgerical clinic, X-rays were obtained. After X-rays were done, the oral surgeon came in and stated that in addition to the frenectomy, my daughter also needed her wisdom teeth out. He stated if we didn’t do the wisdom teeth removal that day, we would just end up coming back for that in 3 months. The doctor showed me the X-rays which clearly showed all 4 wisdom teeth pushing against the other teeth. With the surgeon’s recommendation, I signed a consent for the wisdom teeth removal and my daughter was taken back for surgery. After surgery, I was called back to speak to the surgeon. I was then told that the surgery went well but there was a problem. He stated that there were 2 other children with the same first name as my daughter in the office that morning and they had looked at the wrong X-rays. He said he quickly discovered the problem when they cut into my daughter’s lower jaw and found no tooth. The surgeon stated that my daughter only had 2 wisdom teeth top only. They removed the top 2 teeth, cut into and restitched the bottom unnecessarily and did the frenectomy. He went on to say that there would be no charge for the procedure. Most of the post-surgical pain and swelling my daughter had was in the bottom jaw where an unnessary cut was made. I am just wondering if this is something I could /should pursue.

Asked on January 4, 2017 under Malpractice Law, Minnesota

Answers:

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

Answered 4 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit against the oral surgeon, it may be possible to settle the case with his malpractice insurance carrier.Obtain your daughter's medical report from the surgery.  Your daughter's medical report should be submitted with her malpractice claim to the malpractice insurance carrier.  Ordinarily there would also be medical bills, but since there wasn't any charge, that won't be included in your claim.
The medical report will document the unnecessary surgery and will be used to determine compensation for pain and suffering.
If the case is settled with the malpractice insurance carrier, NO lawsuit is filed against the oral surgeon.
If you are dissatisfied with settlement offers from the malpractice insurance carrier, reject the settlement offers and file a lawsuit on behalf of your daughter, for negligence against the oral surgeon.
You will need to be appointed guardian ad litem to file a lawsuit on behalf of  your daughter because a minor cannot file a lawsuit herself.
If the case is NOT settled, the lawsuit for negligence against the oral surgeon must be filed prior to the expiration of the applicable statute of limitations or your daughter will lose her rights forever in the matter.


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