I’d like to find out if this situation, as described to me, might rise to a level of medical malpractice. This is an auto accident, not worker’s compensation. Names have been changed:
Miguel was injured in a bad car accident almost a year and a half ago. His ankle was crushed and hanging limply, he couldn’t move it or walk at all. He was rushed into surgery after being transported to the hospital by ambulance. A plate and screws were inserted. He was given time off work to heal, moved back in with his parents for the duration, went to physical therapy, and learned to walk unassisted again. A few months later, he was able to return to work, but not without pain.
Fast-forward to now, and the ankle is not doing as well as he’d hoped. The plate and screws were recently removed, necessitating more time off work. The scars from that procedure have healed well. However, the bones in his ankle appear (at a casual glance) to be vertically-misaligned. Miguel is in pain every time he takes a step (ranging from minor to extreme, depending on activity level that day). He’s still managing to do his job as a part-time retail employee, approximately 30+ hours a week. But he’s on his feet every day, and hasn’t been pain-free since the accident. After a recent cortisone shot didn’t help, Miguel was told he may need to go back for more surgery (and is since seeking a second opinion). He’s trying to come to terms with the fact that he may never be pain-free again in his entire life.
Hypothetically, say that the upcoming surgery doesn’t fix the problem. Is there a potential malpractice exposure for the plate-insertion done by the original surgeon? Or is it just a fact that sometimes fractures heal poorly, and he should just suck it up?
And a bonus question: what happens when the auto policy limits are exhausted? Should he get an attorney? Should he have already gotten one?
Miguel should talk to a lawyer, one who specializes in medical malpractice. Whether a medical malpractice case can be filed/won depends on the facts (just having a bad or less than perfect result does not mean there was malpractice) and also state law.
Special laws applicable in many states also make medical malpractice cases harder to win and more expensive, so that even a case that has merit may not be one that a lawyer is willing or able ot take on.
If Miguel smokes or takes naprosyn, I can almost guarantee the bones won’t heal well as both of those are known to interfere with bone fusion and healing.
Obviously, I don’t know how Miguel lived his life after the accident, but naprosyn / naproxen and smoking are both huge no-nos after spinal fusion surgery where you need bones to heal.
ETA: proving a botched surgery is a very large hurdle if they want to open a malpractice case, and in some states, death is just about the only circumstance where it’s worth the effort.
In some states/some cases, death is not a big enough injury to justify the cost and difficulty of trying to win a malpractice case. E.g., if the dead person was not working or earning much, was old or not likely to live long, or did not have a family the damages allowable even if you win the award might well not outweigh the expense.
On the other hand, if the person is young, likely to live a long time, will have substantial medical expenses and significant pain and suffering, the case could have a high value and be worth pursuing.
That’s why the “tort reformers” want caps on damages. Caps aren’t needed for the less serious cases, which are self-limiting given the difficulties and the expense of prevailing.
Sometimes really bad fractures take multiple surgeries over months or years to correct. Among other things, medical malpractice requires the plaintiff to prove that the initial surgeon did not meet standard of care for Miguel’s specific injury,
It would be VERY helpful to know what state Miguel is in. Some states (WV comes to mind in particular) it’d be a complete waste of time, other states tend to have very generous juries.
I am living proof that sometimes fractures do heal poorly. It’s been since 1996, and my bones still haven’t entirely fused. I’m on my 3rd board-certified foot and ankle surgeon, and none have suggested that the guy who did the initial surgery did anything wrong; some things are just much more difficult to get to heal well than others, and ankles are very complicated joints. And other health issues can factor in as well: poor nutrition, poor circulation, etc.
Of course, maybe the initial surgery wasn’t done perfectly either. The two are not mutually exclusive.
Not being 100% following surgery from a traumatic injury is not malpractice. That is the unfortunate result of an accident. Unless Miguel can show some sort of gross dereliction of duty on the part of the surgeon I’m not sure he has a case. Did he seek a second opinion before surgery? Is he insured?
Everything is happening in New York. He is 29, was 27 at the time the accident occurred. He’s already looking at lawyers (his boss at work seems to be encouraging that angle, I don’t think this would have occurred to him on his own). I’ll encourage him to talk to one. Thanks for the advice thus far. He can’t wait multiple years and surgeries to file a malpractice suit, it appears the statute of limitations is 2.5 years there.
A friend of mine used to be a foot surgeon somewhere in the DC area, but she got fed up and left the occupation when she was sued by a patient because his foot, that had been crushed by a log, didn’t heel back to the state it was in before the accident and she had done her absolutely best to save it.
That’s fair. I’ve discussed with Miguel the concept of MMI (maximum medical improvement) ratings, which I’m familiar with due to my experience with work comp claims (from the insurer’s POV). With some injuries, I realize it’s not possible to get back to your pre-accident condition. Crushing such a complex joint is a pretty big repair job, I get that.
FWIW, he’s not out for a big payday. He’s just tired of being in pain all the time. I told him contacting a lawyer would probably be a good idea, if only to assure himself that he’s not getting screwed by his doctor. But also, I’ve explained that hiring a lawyer is like pouring molasses onto the gears of the claims process. So it should really be a last resort. And his adjuster is still returning his calls, so I don’t think he’s there yet.
The quintessential task in medical malpractice cases (called “professional negilgence” in Illinois) is that:
The applicable standard of care is that of a reasonably careful practitioner of the same profession or specialty. What a reasonably careful practitioner would or would not do in various clinical contexts is established by expert testimony from other practitioners of the same profession or specialty.
The fact-finder must rely on the expert testimony and not substitute their own notions of what reasonably careful practitioner should or should not do.
The outcome of the procedure, on its own, falls far, far short of establishing professional negligence. Knowing only this outcome, it is impossible for anyone to say whether malpractice occurred.
If your friend believes that he received treatment falling below the appropriate standard of care, as he best understands that to be, he should probably consult a med-mal attorney.