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Suing a doctor?

Discussion in 'Off Topic Discussion' started by ianbobo, Oct 17, 2007.

  1. ianbobo

    ianbobo Well-Known Member
    It's My Birthday!

    Oct 4, 2004
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    I dropped a jackhammer on my foot doing some work around the house. I went to my primary doctor and he xrayed and told me to wear a brace for 3 weeks. I did and it didnt get better. He then sent me to an orthopedist who took xrays w/me laying down and said nothing was wrong just let it heal. After 4 weeks I asked for a second opinion and went to another orthopedist who took xrays w/me standing. He found a dislocated bone that needs surgery and becaus it was more than 6-8 weeks after the accident I will need a bone fusion & 6 months of recovery. This was confirmed by a 3rd doctors opinion.

    Question is can I and should I sue the 1st orthopedist? I saw him about 3-4 weeks after the accident. And does anybody know of a good lawyer in MA that could handle something like this? You can PM with that info.

  2. abudabit

    abudabit New Wackbag

    Oct 10, 2004
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    Did you get a copy of the original x-rays? Perhaps they didn't show anything.
  3. Glenn Dandy


    Mar 21, 2005
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    you have to prove the doctor was negligent in his actions... Doctors are allowed to make mistakes... they just cant be negligent.
  4. thelord68

    thelord68 There's always time for lubricant

    Feb 24, 2003
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    Tough call. I've been through the whole malpractice route before and I know from experience that even blatant mistakes are hard to prove.

    In your case, the question will be if it is normal procedure to do the x-rays laying down or with pressure on the foot or both.

    The other question is whether it was possible that the dislocation happened AFTER the first doctors examined it by you walking or putting weight on it too early.

    Most personal injury/malpractice lawyers work on a contingency basis, so the initial consultation is usually free. They want to make money, so they won't take on a case unless they are reasonably satisfied they can win or get a settlement. They should be pretty straight-forward with you about the viability of a case.
  5. FMDoug

    FMDoug Registered User

    Nov 29, 2005
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    See a medical malpractice lawyer in your area. Even if the initial fee is 100 or whatever - you might possibly have your medical expenses paid for.
  6. Stormrider666

    Stormrider666 Hell is home.

    Mar 19, 2005
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    See this is the problem, I'm having with my sitaution. I met with my lawyer back in March, while I was still in the hospital. Got out in April and have maybe talked to him 3 times since then. He hasn't said yet whether he is dropping my case, but he also hasn't seem to be to interested in it. He did say that they were having problems getting my medical records, so we shall see.

    THE FEZ MAN as a matter of fact i dont have 5$

    Aug 23, 2002
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    i have to agree with mr presidente, although some doctors think there gods they are just men, and unless threw blatant negligence they cause death truly permanent disability, i say eh, get over it, in all reality your the one at fault, you dropped the jack hammer on your foot, you do know that they make guards that will cover your entire foot to protect against just such accidents.
  8. FMDoug

    FMDoug Registered User

    Nov 29, 2005
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    if you can make sense of it, here is some help. This is generally the duty part of the negligence formula (duty, breach, causation, damage)

    Physician Liability – in the absence of some specific undertaking the patient normally understands and expects that physicians acting with their ambit of their profession will exercise the skill, knowledge, and care normally possessed and exercised by other members of their professional.
    o Standard set by relevant community:
     Strict locality rule: (generally only applied to medical malpractice) but – Standard was that of those doctors employed in the same community as the d
     Most jurisdictions have rejected the strict locality rule and have instead adopted a standard of the same or similar locality as that of the d
    • Restatement: the standard is that of persons engaged in similar practices in similar localities, considering geographical location, size and the character of the community in general.
     Some jurisdictions have adopted a national community standard under the circumstances
    • Where the physician is a specialist, generally a national community standard
    o Morrison v. MacNamara – Smear and fell, should have done it lying down.
    o You establish standard by looking towards the experts
     If you want to have expert testimony and the person is not in the same specialty there are three different views
    • Jurisdiction requires expert must be in the same specialty
    • The two separate specialties have the same standard
    • Demonstrated the knowledge of the standard
    o Informed Consent
     Standard for informed consent – If there is no consent to the treatment itself then there is going to be a battery.
    • Should stem from understanding decisions based on adequate information about the treatment, the available alternatives and the collateral risks. This requirement, labeled “informed consent,” is, legally speaking, as essential as physician’s care and skill in the performance of the therapy.
    o The doctrine imposes a duty on the physician or surgeon to inform a patient of his options and their attendant risks. If a physician breaches this duty, patient’s consent is defective, and physician is responsible for the consequences
    • Nondisclosure of required information
    • Actual Damage – resulting from the risks of which the patient was not informed
    • Causation (Double Test)
    o Subjective – P would not have chosen to have the treatment/procedure if he had been informed of the risks (minority)
    o Objective – The non disclosure would have affected the decisions of a reasonable patient to have th treatment/procedure. P must also establish he would have foregone treatment/procedure (majority)
    • ***!Old Rule: Physician standard - if others did not disclose the risk then it was reasonable for the dr. not to.
    o Requires expert testimony to establish the standard of what other dr.’s would disclose
    • ***!New Rule: Patient Standard – The obligation of dr. is to tell what the material risks are. This standard of disclosure is going to be governed by the patients need to know. The risks patients would want to know to make the decision for surgery
    o Generally does not require expert testimony
    o Material Risk – Under the materiality standard, the dr. must disclose material information of which he knows or should know. If the dr. knows the patient attaches special importance to a particular matter – it would be material even if most other people would not be concerned about it.
     Otherwise materiality, is generally judged by an objective standard and is information which a reasonable patient would consider in deciding whether to undergo the medical procedure. Materiality generally depends on the likelihood and severity of harm and is generally a question for the jury
     Exceptions (Privilege of Non Disclosure)
    • No need to disclose risks everyone knows or risks that are known by the patient.
    • Therapeutic Privilege - Where full disclosure would be detrimental to the patient’s total care and best interests the physician may withhold disclosure. (this is generally meant that a physician need not inform the patient of risks if it would render the patient unfit for treatment –or- create a grave danger to his health.
    • Where there is an emergency and the patient is in no condition to determine for himself whether treatment should be administered. Emergency and cannot obtain consent.
     Burden of Proof
    • Burden of Proof is on the patient to establish a prima facie case of failure to disclose
    • Burden of proof is on the dr. to establish a privilege not to disclose (affirmative defense)
     Moore v. The Regents of the University of California
    • Patient standard – a reasonable person would want to know the risks of having the procedure
    • Physician standard – would have to look to see what other dr.’s in the community do
    o What if Dr. has HIV? There is damage enough that patient was put into apprehension, usually cases hold that there is no damage.

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