Medical Malpractice/Wrongful Death Lawsuit?

[candg918]

OP,

I'm sorry for your loss.

However, since you feel so strongly that there was malpractice, why are you on this forum arguing with the senior members who are trying to present a rational perspective of the situation?

In even small towns there are attorneys that will take on malpractice suits against others in that same city. Go and find one for closure - one way or the other.

 

[tonybologna]

@Dogmatique:

Without having the perhaps necessary experience or expertise, how can you say this?

I'm not basing this on expertise or experience. Take a look at articles about malpractice/wrongful death information. About every single one of them will say that people aren't aware of the ability or reasoning for a malpractice claim. They think it's not even something that can be done due to the signing of that piece of paper(s) for consent.

Again, what is the basis of your claim here?

The reality is quite the opposite. The reality is that most people who think they have a claim actually don't. A bad outcome does not mean that there was negligence. A tragic complication does not mean there was negligence. What a family member thinks should happen or should have happened isn't necessarily what is medically correct or appropriate and again does not mean there was negligence. Even if an error is made, this does not automatically make it a malpractice or negligence case.

There is no grand conspiracy or coordinated effort to make families "go away" or forget the possibility of a suit. It's very simply that in most cases, there is no suit to be had.

I never stated that if an error was made that it's automatic for a malpractice suit. Where did I say this? You have placed words into my mouth. I never said anything like that period or if I did you point me to it.

I never said that a bad or tragic outcome proved negligence either. This isn't what I or any family member thinks should be done here either. It's what wasn't done here. You can't tell me that with my dad getting a "major" anastomotic leak & them not trying to do anything about it is not an indication of some type wrong doing.

They knew the consequences of this type leak if nothing was to be done immediately. There was nobody there to make a determination on what to do & since his surgeons weren't contacted then his fate was sealed anyhow. You can't use the excuse of his age & the leak was going to kill him anyhow.

The facts are that if something is done soon enough then there is a higher chance of survival. Nothing was done so there was no chance of survival period. While his death may have not been directly due to nothing being done it sure was signed,sealed,& delivered without something being done.

He had a chance with an invasive quick measure but no chance without it. This is my point & like I said if this comes to nothing then that's fine. I'm not trying to argue or make problems with anyone here. I understand that there are pretty good people here for helpful information & I'm not trying to dispute anyone.

I just wanna get my points to be seen & understand where I'm coming from here. I'm not bitter or feel any hatred towards the people involved with our dad's death. It's just you can't just let it go without finding out what happened. We still have no clue as to why the leak happened & why nothing was done to try & correct it.

In reality with this type leak you're gonna pass away anyhow when nothing is done. You see what I'm saying? They knew what was going to be the fate of our dad once the leak happened if no measures were taken to correct it. There's always that possibility of dying on the operating table with any surgery so saying he wasn't stable enough by the surgeon after death is no excuse.

@candg918:

I'm sorry for your loss.

However, since you feel so strongly that there was malpractice, why are you on this forum arguing with the senior members who are trying to present a rational perspective of the situation?

In even small towns there are attorneys that will take on malpractice suits against others in that same city. Go and find one for closure - one way or the other.

I'm not trying to argue with anyone. I'm just on here trying to make my points about this matter. I may be wrong about it because who knows right now what we have as a claim. Unless someone has the medical records to view then then it's really a guessing game.

We have those medical records in a lawyers hands & we'll see what he has to say soon. We also have copies ourselves to view but we're not experts to figure out what we have. I'll just leave everything as it is now & will not try to dispute or make my points anymore. I don't want to offend anyone because that's not how I work.

I'm a man of faith & try to get along with everybody. I don't know anyone on here but I still try to treat people the way I wanna be treated. I'm sorry if I have came across as arguing or offending. It's just trying to show a point of view. Thanks!

 

[Proserpina]

There was nobody there to make a determination on what to do & since his surgeons weren't contacted then his fate was sealed anyhow.

And this by itself may very well support the notion that there was no wrongdoing. There was nothing, physically, that could be done - because there was nobody available to make a determination. This is tragic, yes - that's not in dispute. But it is not evidence of wrongdoing.

While his death may have not been directly due to nothing being done it sure was signed,sealed,& delivered without something being done.

He had a chance with an invasive quick measure but no chance without it. This is my point & like I said if this comes to nothing then that's fine. I'm not trying to argue or make problems with anyone here. I understand that there are pretty good people here for helpful information & I'm not trying to dispute anyone.

Your points are seen and understood - please don't think any of us are unsympathetic or don't feel for your family. I think I can speak for everyone - absolutely everyone - when I say that our heartfelt condolences go out to all of you. This is a horrible situation and it's truly heart-breaking.

But it doesn't appear - by what you've stated so far - that there's any obvious negligence or malpractice.

In reality with this type leak you're gonna pass away anyhow when nothing is done. You see what I'm saying? They knew what was going to be the fate of our dad once the leak happened if no measures were taken to correct it. There's always that possibility of dying on the operating table with any surgery so saying he wasn't stable enough by the surgeon after death is no excuse.

Perhaps there's no excuse for not doing anything in your opinion but this doesn't mean there's any legal or even ethical obligation for them to do something that they may consider futile. Your father was admittedly compromised and though this might seem unfair his prior status will have been a consideration with any treatment plan whether that plan was decided within two hours or two days.

I do understand your point of view - and it's comforting to know that you have such a strong faith and that you have what's really important during this time of grieving - the strength and support of family.

 

[tonybologna]

I understand & appreciate all sympathies. I'll keep you guys updated on this matter. We hope to hear something soon. Thanks!

 

[tonybologna]

Update:

The paralegal called us yesterday from the lawyer's office. She stated that the matter was still under "full review" by the attorney. We turned over the medical records a little over a month ago.

Now, before people say that's plenty enough time let me says that we were told by the secretary that it could take a while due to the workload. The paralegal said to give him a few more days to review & then they'd get back to us as soon as possible. She only would state that from the review thus far is that there is "possibly" doctor error from the surgery.

She said that the typical procedure may have not been followed by these surgeons involving this type surgery. Now, maybe there's reasons for not following the typical procedure with my dad but we'll know more soon enough. She said until the matter was "fully reviewed" she couldn't give any more details.

The lawyer's office only has 2 attorney's. The one reviewing our case & his son which works in the practice. This lawyer is really popular in the local area & is well-known for his honesty & efforts into not only malpractice suits but other areas as well.

My wife met someone that has past dealings with this lawyer & said that he reviews things very thoroughly & doesn't get in any hurry. Now, we have 1 year under that statute of limitations.

We're now at 4+ months since our dad's death. We have plenty of time here even though we may try another attorney if nothing comes of this one. However, due to his popularity & reputation we might let things end here if nothing is warranted.

We have grieved long enough & probably don't want to let it linger any further. I'll post back when we get another update. Thanks!

 

[ecmst12]

Lawyers do everything slowly. ALL lawyers. You don't involve a lawyer because you want something done fast, you involve one because you want it done correctly, well, and within the bounds of the law. If there IS a case for a lawsuit, you can expect it to drag on for 3-5 years or maybe even longer.

 

[tonybologna]

Lawyers do everything slowly. ALL lawyers. You don't involve a lawyer because you want something done fast, you involve one because you want it done correctly, well, and within the bounds of the law. If there IS a case for a lawsuit, you can expect it to drag on for 3-5 years or maybe even longer.

I was referring to other people telling me that there's been plenty of time for a review. Why has there been plenty of time? Like you just said it takes time through the process. I was talking mainly about meeting the statute of limitations for the 1 year.

I'm very well aware that if we have a case it can drag on for months or years. So many other people are telling me that due to not already having an answer after 1+ month then we are being mislead or don't have anything. How do they know the lawyer's workload & efforts?

We have a very qualified & honest lawyer reviewing the case. It's not something that we wonder if we're being played or not being provided with honest information. Thanks!

 

[cbg]

I'm sorry, where did anyone here say there had been plenty of time for a review? Where did anyone make such a suggestion? You're the one who brought the subject up, not anyone here.

 

[ecmst12]

I think OP's friends/family are giving him opinions on matters they know nothing about, and he thought he'd get more of the same opinions from people here. OP is correct in not expecting the lawyer to be done the review already and correct in telling his friends/family to stuff it

 

[tonybologna]

I'm sorry, where did anyone here say there had been plenty of time for a review? Where did anyone make such a suggestion? You're the one who brought the subject up, not anyone here.

The sister forum to this one here guys! Legal help forums! Not advice from any family/friends here either. We are in this together as a family but no advice for sure. Nobody here told me this but other legal forums sure have. Thanks!

 

[tranquility]

I have no idea of the medical exigencies or responsibilities in this case, but do have an idea of the legal ones.

If the attorney does not take the case on contingency, you have not found your attorney or have a "case" as yet. Even if he does take it, be sure you know who will pay the costs of the suit including the required experts. Costs alone will be tens of thousands of dollars and are not always (or, often) included in the contingency arraingment.

 

[lya]

I read several articles, even paid to read one article, on the ivor lewis tte. This procedure, whether called the ivor lewis or called minimally invasive, or transesophageal, has problems. There is a high rate of complications, including death.

Anastomostis leak is a problem in this procedure and in every procedure that requires an anastomosis. Think about it--there is no way to perfectly seam together ends of a whole 'tube' that has been divided/severed.

Add in to this scenario an esophagus that has received radiation threatment. The esophagus and surrounding tissues are dry and brittle from the radiation; they tear, they rupture, they leak.

Add in what the procedure does. It removes the esophagus from the stomach and does so at the junction of the two organs. What is in the stomach? Acid. Gastric juices. Stuff that eats up what is in its path. An anastomosis in such an area subjects raw meat (the anastomosis) to acid. No big mystery as to why there are so many complications.

In the scenerio presented by the OP, the patient is in poor health with little ability to heal, the needed elements being depleted first by cancer and then by treatment. The patient is not quite elderly, but "old", is malnourished, weakened from chemo and radiation, and undergoing a significant procedure. The chances of recovery are not good. The three-year survival rate is 29% for the procedure being discussed; those are not good survival rates. It means that 71% of all patients undergoing this procedure will die in less than three years. The majority of those who die will die while in the hospital, where the average stay in ICU is, in rounded figures, 4 days, with a total hospitalization of 14 days. That means that the majority of the 71% of the patients who will die after this surgery do so within 14 days of having the surgery.

Once the OP's father presented with a downward change in physical status, there was not much that could be done to evaluate, diagnose, and treat. He was not a candidate for a CT scan until he improved. He certainly wasn't a candidate for a procedure to check for a leak. He wasn't a candidate for corrective surgery, either. He was a hope-and-pray patient; hope and pray for an upward change in condition that would allow more to be done. It didn't happen.

The feeding tube was more likely than not placed correctly. There is a post-placement x-ray on file that will either confirm correct or incorrect placement. The darn things come out, they migrate while inside the intestines. Ever see a snake move across the ground? It's one heck of a series of muscle contractions. Similar muscle contractions are going on all the time in the intestines. There's no mystery as to why a feeding tube gets out of place without there being any external cause.

We're left with a heartbroken family and an attorney who thinks he can review and opine on such a complicated set of events. If the attorney figures out what went wrong and how it could have been prevented, there is an entire world of surgeons who would love to have his knowledge and the opportunity to improve the survivabilty of patients with this procedure.

As for the statute of limitations, the lawsuit must be filed before the statute expires. If it is already in the hands of the attorney, it seems likely the statute will be protected. A proper medical expert can be located and opine within a couple of months time. That leaves plenty of time to file the lawsuit if the expert believes negligence is the only cause of the damages. I don't think that will be expert's opinion, though.

 

[tonybologna]

Thanks for the detailed post. I couldn't have researched or said it any better here than you just did. You're right in that the leak is a definite complication of this Ivor Lewis or any type esophagectomy surgery. I studied long & hard about this surgery before my dad ever decided to go with it.

Just let me say I fully understand your post & explanation. Yes, we as a family are extremely emotional about this indeed. We know our emotions get caught up in the matter. That happens with all families when they think more could've been done to try & save a loved one.

The actions by the hospital staff doesn't mean there was negligence although it sure was bad reactions. This is common in the medical world today & we're not the only family that's been treated this way. I understand that area as well.

Let me give you some some statistics from the surgeons involved after more research. These two surgeons(one thoracic,one oncology) had performed just over 100(102 I believe at the time of my dad's) esophagectomies in the past 20+ years. Well, the thoracic surgeon had actually been doing this for 21 years & the oncology surgeon for over 14 years total. Together, they had done over 100 & that's not including the other surgeries done with other surgeons/doctors.

The report is that only 3 patients in the past 102 involved an anastomotic leak. That's an amazingly low number for this leak but the percentages are only at about 4%-6% anyhow. This would be even lower for them.

What does that say about them? Well, you could look at it different ways. On one hand, you can say they're good & rarely happens to them. On the other hand, you can say what happened in these 3 other cases? I'm not a doctor to know that but it makes you wonder what was different about the ones that failed?

Was it the patient's status or overall health condition? Was it a combination of patient health & doctor error? Was it just doctor error? You see what I mean here? I'm not trying to say I know we have a case. Maybe we don't & it takes a lot to prove that we have a case for malpractice/wrongful death.

I'm not trying to argue with anyone on these boards. I'm just making my points in frustrations I guess more than anything. I mean the paralegal has at least given us a glimmer of hope by reporting to us he's fully reviewing the matter & there's "possibly" evidence of doctor error.

Now, like I said what's that evidence thus far? I don't know & the attorney is the only one to know as of right now. It was mentioned that their standard procedure may have not been followed in comparison to their previous surgeries of this type. There could have been a reason for not following their standard procedure that's not been uncovered yet by the lawyer.

Our dad wasn't in good health anyhow. That plays a role in things as well. What I mean by good health is that he was undernourished going into the surgery but the docs insisted on doing it anyhow. Malnutrition can also play a big factor in possible complications after surgery.

We expressed our concerns about him being undernourished but the docs said there was a small time-frame to go in & correct the esophagus after chemo & radiation treatments. It had to do with scar tissue forming around the area from the radiation treatments & wouldn't allow corrective surgery if delayed.

Our dad weighed only 130 lbs when the surgery was done. Even his regular medical doctor was concerned about doing the surgery at that weight & condition. Yes, he also had Lupus(systemic) along with Degenerative Disk Disease as well. Otherwise, our dad was in decent health going into the surgery. Of course, the cancer was the biggest concern as far as health. Who's in good health with cancer anyhow?

All this other stuff has nothing to do with a malpractice/wrongful death suit but still want to show the picture in how things went. If nothing else we need to make it clear that something needs to be done about some of these sorry medical practices. Again, we're not the only family that's been treated this way but speaking up about it & shedding light on it & venting is a way to deal with it.

If we don't end up having anything then expressing my feelings & shedding light on these medical practices needs to be emphasized. It's hard dealing with losing a loved one. I'm emotional & feeling sad about the situation. I'm a man of faith & in the end I'll forgive however was involved in the bad medical practices.

We still as people of faith need to hold people accountable if something was done wrong. Maybe nothing was done wrong to cause a malpractice/wrongful death. Having that assurance from a qualified medical malpractice lawyer will go a long way with the heeling no matter what the outcome is to be.

It will feel better either way. If there's nothing that could've been done then we have that peace of mind. If doctor's error caused our dad's death then we at least know that was the case & not have to keep wondering. Thanks!

 

[ecmst12]

I hope you find the closure you seek.

 

[lya]

3 patients out of 102 patients equals, in rounded figures, 3% of all patients. 4 patients out of 103 patients equals, in rounded figures, 4% of all patients.
This means, the two physicians who performed the OP's father's surgery are right on target for significant anastomosis leaks r/t this procedure. I'm betting 71% of their patients died within 3 years of the procedure with the majority dying within the hospitalization period.

Once again, maybe we should have started with explaining what is legally required to have a medical malpractice lawsuit, that being the four required elements.
1) a duty to the patient. (met)
2) a breach in the duty to the patient. (unmet)
3) an act or acts of negligence (unmet)
4) damages that are solely the result of the act(s) of negligence (unmet)

The breach in duty cannot be met by the physicians' being out of town over the weekend. Crazy as it seems, apparently it's just fine for physicians to leave for the weekend and provide patient coverage through lesser qualified and able physicians--happens all the time, making life difficult for patients, families, and nurses.

An act of negligence probably occurred somewhere in the patient's care. Even if it was failure to properly document something totally irrelevant to patient recovery, such failure to document is still an act of negligence. As relates to the poster's stated scenerio, I don't see an act of negligence that contributed to the outcome.

The damages are related to the original diagnosis and the treatment thereof. Damages may also exist from something the surgeons did wrong during the procedure but another surgeon of the same specialty and practice must opine on this and state that only the act of the surgeon caused the patient's demise. Ain't gonna happen.

Somewhere along the way, grief will begin to subside and clearer thinking about the situation will take over.