Broken pin in ankle causing pain...

by R

I broke my ankle and needed surgery to repair it. During the surgery the doctor was drilling in a pin and it broke, so a new pin was used and the broken piece was stuck in my bone. In addition, 6 screws and a plate were inserted properly. Afterwards he said there would be no problem with the broken piece of the pin and that my bone would grow around it.

About 18 months later I had some pain and the same surgeon indicated he should remove the six screws, the plate, and the whole pin (not the piece of broken pin, which at this point I understood was not removable).

About 5 years later (today), I have had increasing pain for several months in the same ankle. I went to see the same orthopedist and he took x-rays. He concluded very quickly after seeing the x-ray that the broken piece of pin needs to be removed because it is rubbing against muscle and causing pain.

I have to have surgery in a few weeks and I will miss a couple days of work that I can not afford. Do I have a case against this doctor? He clearly stated the pin would not be a problem and now it is. Is he responsible for compensating me for the lost days of work and my pain?

Visitor Question:
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ANSWER for "Broken pin in ankle causing pain...":

R (NJ):

Unfortunately, the State of New Jersey’s “statute of limitations,” or the time period in which a medical malpractice lawsuit must be filed is two (2) years from the date of the alleged malpractice.

There is an exception. In the State of New Jersey there exists a “Discovery Rule.” The discovery rule states that the statutory period of two (2) years can be extended, or “tolled,” until such a time as the victim could have “reasonably discovered” the alleged malpractice.

Under the discovery rule, the two (2) year statute of limitations period will not commence until the victim could have reasonably discovered the malpractice. Upon discovery, the victim will have two (2) years to file his medical malpractice suit. After that time the victim will be prohibited by law from pursuing a medical malpractice claim.

In your case, it is arguable you first discovered the pain you speak of eighteen (18) months after the initial surgery. Even if that date were to be used as the commencement date of the statutory period, you would still be three and a half years too late.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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