My wife had both knees replaced in the last in the last 7 months. Her first knee (left) was done on July 12th 2013, her second (right) was done on December 13th, 2013. The short story is, the Doctor admitted that he made a mistake with his assessment in choosing the right size insert on her first knee surgery.
This conclusion occurred while my wife was on the operating table for her second knee after he did his physical examination of her first knee.
He stated to her (paraphrasing) “Oh, this is not good, its too loose.” Consequently he used a larger insert for her right knee.
Two weeks ago we saw the Doctor for my wife 6 week post-op, where we question him on his mistake. He admitted that he made an error and if she was dissatisfied he would perform another surgery to replace the insert with a larger one.
The problem is my wife has a $10,000.00 health insurance deductible which is why we had both knees done in the same calendar year. I stated that reality to the Doctor and he said he would work with us on his costs, then I asked about the hospital and anesthesiologist charges, which he stated he couldn’t do anything about.
My wife is 7 to 8 weeks post-op on her right knee and that knee feels much better than her left knee, so having the second surgery is a unavoidable.
My question is, what legal leverage or options do I have with the Doctor regarding the financial hardship we will incur due to his mistake? He is the best knee replacement orthopedic in Atlanta, and we want him to do the next surgery. Thank you.
Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.
There exists a real question of whether or not medical malpractice occurred. For legal purposes, medical malpractice is generally defined as an action or omission (of a doctor or health provider), which deviates from the accepted standard in the medical community, and as a result of that deviation a patient is unduly harmed.
While the doctor’s mistake may have risen to the level of medical malpractice, there is an argument that it may not have. This is because the doctor acknowledged the mistake within a reasonable time after the surgery, and thereafter agreed to correct the mistake promptly.
In your wife’s case, the real possibility malpractice occurred may be enough leverage to have the doctor and hospital pay for all your wife’s surgery, her out-of-pocket costs for medications, leg braces, etc., lost wages, and some amount for pain and suffering.
You and your wife may want to consider a “sit down” meeting with the doctor wherein you do not threaten to file a medical malpractice claim, but instead discuss its possibility. As long as you don’t threaten the doctor, he will likely understand what you are saying. This may be enough for him to take care of all the costs related to your wife’s surgery.
It would also be a good idea to contact several medical malpractice attorneys in your area. Most will not charge for an initial office consultation. The attorneys will advise you whether or not you have the basis of a medical malpractice claim, and the probability of its success.
Learn more here: Lawsuits for Surgical Malpractice
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney.
Best of luck with your claim,
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