Malpractice help

What is the name of your state? California

I was injured at work five and a half years ago with a shoulder and collarbone injury. I tore out the Labrum in the right shoulder and displaced the right collarbone. The first doctor I saw did a surgery on the right shoulder in 2000 and inserted screws to hold the Labrum in place. When he did this, unknown to me for over a year after, he had put one screw completely through the bone and the sharp point was ripping up the head of the humorous every time I moved the arm. I complained about constant pain and noise in the shoulder but the doctor said I only wanted pain meds and was not really in pain. He also told this to the second doctor I got after him for a second opinion. Now I have had five more surgeries done and I am told I will need a shoulder replacement. The pain is unbelievable and I take Morphine. Second doctor did a surgery to cover the screw with cartilage, but that will only last so long. Other screws the first doctor put in have ripped out. I talked to an attorney, but he said I had no case after speaking to him for five minutes. What do you people think? Do I have a case? If I do, is the limitations on time from the date of the surgery, or when I found out about the mistake? Contacted first doctor on this by mail but no reply.

probley out of time to file. in my state there is a pre-emptive statute where after 3 years you can't sue for malpractice even if you find the doc left a scapel in you. there is however contra-non-valentum which means that if the doctor covered up your injuries and you were in his care all that time you may still be able to file. but from reading your post i think your time to sue has long since passed. remember not to vote for tort reform it just screwed you.

D v. G

thank you for the answer but I guess I am also concerned that an attorney I talked to after I found out about this told me that I could not sue because the doctor did not do it intentionally. That made no sense to me. I will contact another attorney and check with him about the laws in California. Thanks again for your reply.

[ellencee]

Shutdown
Below is a site on medical malpractice laws in California. After comparing the statutes presented in the referenced site and comparing your description of events, I believe the statute of limitations may still allow you to file a claim of medmal.

The attorney to whom you spoke does not seem to have a clear understanding of the events. It is possible for the screws to go through the bone and not be the result of a negligent act; however, ignoring a patient's complaints of constant pain and hearing/feeling noises in the bone or joint after surgery is failure to provide reasonable and prudent evaluation and treatment of post-op complaints. The surgeon knew or should have known that these complaints absent prior to surgery and present after surgery are indicators of problem(s) that if not corrected may lead to significant damages.

Add to that the first surgeon's intentional interference with your receiving an objective evaluation and treatment from the second surgeon...sounds like a case I would recommend for further investigation and consideration of a medmal claim.

Consult with more than one medmal attorney in your area and find one that gives you adequate time to hear your full description of events and will take the time to explain the statute of limitations that will apply and the requirements of a medmal claim. Make appointments for face-to-face free consultations.

[url]http://www.mcandl.com/california.html[/url]

Good luck and best wishes,
EC

Wow, thank you so much for your help. The site is just what I needed.

In California, the statute of limitations for medical malpractice actions is quite tricky. We do have the 1 year discovery / 3 year outside rule, but its interpretations are somewhat murky. For example, its 3 years from the date of the "damaging effect" of the "injury," which is at the point some "appreciable harm" is first "manifested." So, it could be well after the original surgery, but you should know that some draconian precedents trigger the statute of limitations when the damage becomes "evidenced in some significant fashion" (e.g. when the patient starts experiencing the problems, whether or not he knows there is any malpractice involved). To complicate the situation, the 1-year discovery rule runs from the date the patient "should have discovered" the "manifestation" of the injury and its cause. So, in some cases, the SOL ran after plaintiff first started suspecting malpractice.

The bottom line is that this issue is so complicated, that many attorneys will not touch it with a 10-foot pole (which is probably why the first lawyer was not interested within the first 5 mins). You should talk to a med-mal attorney immediately. You may be screwed, but there may also be additional facts that are not posted (especially regarding your new doctor and the timing of his discoveries), which may make a good med-mal lawyer take the case. The best med-mal lawyers are also doctors - MD/JD. There may also be additional claims (other than malpractice) that could get you around the SOL (e.g. fraud). Think creative!

Dimitry

Thank you for the suggestions. I might just look into the malprctice lawyer today. I am thinking of writing this doctor a letter to ask for compensation without getting attorneys involved or his malpractice insurance taking a hit. This guy is now cheif of orthopedic surgery at a major hospital here. What do you think about sending a letter to him and asking him to at least refund the cost of the surgery to me? I know it sounds stupid and he probably will not answer, but if I do this is there any way I can get into trouble? I am not talking about a threatening letter either. Thank you again!

[I AM ALWAYS LIABLE]

Originally posted by Shutdown
Thank you for the suggestions. I might just look into the malprctice lawyer today. I am thinking of writing this doctor a letter to ask for compensation without getting attorneys involved or his malpractice insurance taking a hit. This guy is now cheif of orthopedic surgery at a major hospital here. What do you think about sending a letter to him and asking him to at least refund the cost of the surgery to me? I know it sounds stupid and he probably will not answer, but if I do this is there any way I can get into trouble? I am not talking about a threatening letter either. Thank you again!

My response:

I think Dimitry would agree with me, that while a letter to the doctor sounds like a good idea, and would feel like a great catharsis, you need to remember there are "legal issues" involved in this matter. A letter written by you could have damaging results down the road to any potential case you might have - - only because you're not intimately familiar with the controlling law. So, if I were you, I'd wait on conducting a letter writing campaign and, if a letter is in order, then let your attorney do the writing.

IAAL

Thank you. I contacted the attorney and the time limits are up. I am going to go ahead and write the letter and take that last shot. I doubt I will hear anything back, but at least I know I tried. Thank you all for your help. It is nice to know that you people are here for help. Next time something like this happens I will check with you a lot sooner.
Thank you.