Damages for kidney transplant error?
I had a kidney transplant. Over the next few months I kept complaining about having "felt better before the transplant." Several CT scans and ultrasounds showed fluid build-up near the upper pole of the transplanted kidney, and I kept asking if we should be trying to determine why that was happening, but was assured it could be normal post-surgery fluid and nothing was done.
Five months after the transplant I sought a second opinion at another facility. The other facility did some tests and reported quite frankly, "We don't know what XXXXX Hospital was thinking, but your donor kidney clearly had two ureters, BUT the transplant team had only hooked up one of them." Further testing showed the ureter they had hooked up worked 2/3 of the new kidney, and the other 1/3 was served by the ureter they did not hook up.
Because of the passing of time (6 months at this point), I was advised the other 1/3 of the new kidney could not be recovered. They went on to say that the hospital that did the transplant might have been able to correct this if they had investigated my complaints and the fluid collection in the first 6 weeks after the transplant.
The second hospital, the surgeon, stated that, in theory, that meant the new kidney would work 2/3 as well and/or would only last 2/3 as long. They were clear it was medical negligence and a major surgical error. AND there was not any mention of a 2nd ureter in the surgery notes, further indicating a lack of medical care.
This has been discussed with an attorney and there is interest in pursuing it. But we are having trouble determining "damages." As explained to me, they could come back and say that kidney function is speculative and it's impossible to say that the error in not hooking up the 2nd ureter will/would cause any "damages."
I have looked for some kind of precedent and/or some way to proceed with this. Of course EVERYONE is shocked at the medical negligence and asks who my attorney is. But without the "damages" aspect we can't seem to move forward.
Any suggestions, resources, precedent info, etc., would be greatly appreciated!
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ANSWER for "Damages for kidney transplant error?":
David (Gardner, KS):
It’s our policy is not to interfere with the attorney-client relationship. If you are presently represented by counsel you should heed his or her advice. Generally speaking, medical malpractice case are complex and hard fought by both sides. In your case there are ate least two (2) possible defendants, the hospital and the doctor who performed the surgery.
If you aren’t satisfied with the advice you are receiving from your present attorney, seek a second, or even a third opinion. Different attorneys can have various outlooks on the facts. You can be sure if an attorney is confident about the success of your claim he or she will vigorously pursue it. Malpractice claims should never be handled pro se (on your own).
To have any chance of prevailing your attorney will have to file a lawsuit. Depositions will have to be taken, subpoenas duces tecum (medical record subpoenas) issued, interrogatories sent, and additional pretrial discovery.
To prove your claim requires you to show the doctor, hospital, or both, met the definition of medical malpractice. It is generally defined as “a medical professional’s deviation downward from the established medical standard of care in the surrounding medical community.” This means you will have to prove other surgeons would have acted in a much different manner. In your case, that might include connecting both ureters. Meeting this burden of proof will be difficult.
Listen to the attorneys. Your lawyer doesn’t get paid until, and unless he or she settles a case or wins it at trial. If you have a provable case, you can be confident an attorney will be happy to represent you. Determining your damages will be very complex and outside of the scope of information we can provide here.
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,
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