Possible to have a lawsuit without victim testifying?

[bdp31770]

About a year ago my elderly mother's heart was racing, so my sister took her to the e.r. They scanned her heart by putting a tube down her throat. The scan results were negative, though in removing the tube they tore her esophagus. She then had to be put on a feeding tube because you can't eat normally until you are healed. She was on the feeding tube for 6 months, a couple at the hospital, then 4 months at home where myself and 2 sisters learned how to manage a feeding tube, and essentially take care of her like a nurse would.

This was very traumatic for the family, a friend in healthcare said we should look in to suing. However, my mother is 89, and absolutely does not want to testify in court. She wouldnt have much to offer in court any way, since shes not knowledgeable of the technical aspects of what happened. One odd thing, when my sister was visiting her at the hospital, she overheard a conversation between the doctor who made the mistake and a nurse. The nurse asked the doctor, "what happened, this is a standard procedure?'. The doctor said "i had to intubate twice and go in the back door." I don't know what that means and cant find that phrase online to get a meaning for it.

So, my questions are, is it ridiculous to think we could take them to court and not have mom testify? Also, I need to find out what the phrase the doctor said means so if anyone knows please share. Thank you for any feedback.

 

[adjusterjack]

There doesn't seem to be any doubt that your mother is entitled to compensation for a year's worth of suffering due to the doctor's mistake. Impossible to say how much.

If you can find a malpractice attorney to take the case, it isn't likely to end up in court. If it gets into court at all it will be the lawyer and the medical experts doing the talking. Your mother's participation will be minimal. However, the more she can express her suffering to a jury, the more money the case might be worth.

At least call around to a few malpractice attorneys, get some free consultations and review your mother's options.

 

[quincy]

About a year ago my elderly mother's heart was racing, so my sister took her to the e.r. They scanned her heart by putting a tube down her throat. The scan results were negative, though in removing the tube they tore her esophagus. She then had to be put on a feeding tube because you can't eat normally until you are healed. She was on the feeding tube for 6 months, a couple at the hospital, then 4 months at home where myself and 2 sisters learned how to manage a feeding tube, and essentially take care of her like a nurse would.

This was very traumatic for the family, a friend in healthcare said we should look in to suing. However, my mother is 89, and absolutely does not want to testify in court. She wouldnt have much to offer in court any way, since shes not knowledgeable of the technical aspects of what happened. One odd thing, when my sister was visiting her at the hospital, she overheard a conversation between the doctor who made the mistake and a nurse. The nurse asked the doctor, "what happened, this is a standard procedure?'. The doctor said "i had to intubate twice and go in the back door." I don't know what that means and cant find that phrase online to get a meaning for it.

So, my questions are, is it ridiculous to think we could take them to court and not have mom testify? Also, I need to find out what the phrase the doctor said means so if anyone knows please share. Thank you for any feedback.

What is the name of your/your mon’s state?

Your mom’s testimony could be a vital part of any medical malpractice suit but there are ways to introduce her testimony without having her personally appear in court.

I have no idea what the doctor meant by what he said to the nurse but that conversation overheard by your sister may have had nothing to do with your mom.

Medical malpractice attorneys generally offer free initial consultations. It would not hurt for your mother to call a few to see what they say. Your mom’s age is, unfortunately, a factor that will be considered when determining whether a potential award of damages would be great enough to justify the costs involved in pursuing a malpractice claim.

 

[zddoodah]

So, my questions are, is it ridiculous to think we could take them to court and not have mom testify?

The only person with standing to sue is your mother. If she's not willing to testify, then I doubt she'd be willing to sue. If anyone were to sue, your mother could be forced to testify. If she were the plaintiff and refused to testify, her case would likely be dismissed. If, hypothetically, someone else had standing and sued, it would be hard to argue that she wouldn't be a necessary witness (despite the fact that the most important testimony would be that of medical experts).

I need to find out what the phrase the doctor said means so if anyone knows please share.

Sounds like slang and suggests that, while intubation might be a "standard procedure," something unusual happened that required something non-standard. There are always risks with any medical procedure, and the fact that something went wrong does not mean malpractice occurred.

 

[quincy]

It will be important to keep in mind the statute of limitations when considering whether or not to file a medical malpractice claim. Claims must be filed anywhere from 1 year up to 4/5 years after the cause of the medical injury arose, depending on the state where the malpractice occurred.

There are a handful of states where your mother might already be bumping up against the barring of a suit due to the state’s limits on filing.

 

[Zigner]

What your mother experienced may not rise to the level of malpractice because esophageal bleeding is a known risk of the transesophageal echocardiography procedure. If you look at the paperwork provided prior to the procedure, it will likely be shown there, and you'll likely see that the risk was accepted by your mother.
As suggested above, speak to an attorney (or three).
Also, as mentioned above, if your mother doesn't want to pursue this, that is her choice.

https://www.heart.org/en/health-topics/heart-attack/diagnosing-a-heart-attack/transesophageal-echocardiography-tee

 

[commentator]

I have a strong suspicion that what was meant (IF indeed the doctor was referring to your mother) was that due to difficulty intubating your mother, the doctor had to put the tube down through her nose instead of through her mouth. They do that. Difficult intubations are very common, could be related to your mother's age, weight, level of mobility, flexibility issues like her ability to open her mouth, etc. Due to the level of difficulty, I would suspect they would have lots of disclaimers in the paperwork. But by all means, speak with a malpractice attorney. They should be able to help you get an idea of what your chances are to prevail.