I live in Alabama. In Sept. 2009 I saw my podiatrist about severe pain in the joint of my great toe. After some tests and x-rays he recommended surgery, as all of the cartilage was gone, and arthritis had severely damaged the joint to the point there was nothing between the bones.
He recommended athroplasty. He described it to me as a “miniature half knee” type implant and said it was a First Metatarsophalangeal Joint replacement.
After the surgery in Oct. 2009 everything seemed great for a couple of months, then I had occasional pain again. Then this year I called him because I started having constant pain and trouble with it (for the past year).
On the first contact, the Dr. office said the had no record of my surgery nor of me being a patient. I contacted my insurance company to find out who did the surgery and they said it WAS him and gave me the date(s) of service and surgery. I contacted the DR again and he agreed to see me.
During my visit, I showed him the scar and told him I thought something had came loose in the implant (replacement joint) because it hurt and throbbed constantly. He did a digital exam and ordered x rays.
After reviewing my x-rays, he said there was no implant in there. I was shocked and couldn’t comprehend what he was saying. I asked what could have happened, did it disintegrate or possibly the bone had grown over it? He said no, that it would definitely show up on x-ray.
However, they still haven’t found my file. I told him which hospital the surgery was at and told him what the insurance company had on record. He said it would take them a few days, and they would contact me when they found out what happened during the surgery.
My question is, what should I do legally? I had this surgery to follow his recommendation, and evidently he didn’t do what he was supposed to do. He never told me post-op that there was no implant. I was lead to believe it was done, both post-op and during my follow up visits.
How can you have joint replacement surgery and the doctor forgets to put the joint replacement in? It doesn’t make sense. Now, I will more than likely have to have it done again, by a doctor who doesn’t forget to put the implant/joint in. Do I have any legal recourse here? This seems extremely negligent.
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.
Before you consider legal action, take a moment to breathe. While the doctor may have forgotten about the surgery, or lost your file, there is still a possibility your file may be found. If that is the case, then this whole matter may become moot.
Your position is wholly supported by the insurance company’s records, your records, and the hospital’s. The most important thing is to take immediate care of your medical needs. You can only hope the doctor will soon realize his error and make arrangements to deal with the problem.
Unfortunately, in the State of Alabama the statute of limitations for pursuing a medical malpractice claim is two (2) years. In your case, you will have to rely on your continued dogged determination to get to the bottom of this problem.
Gather copies of all your medical records pertaining to your surgery. Go through them carefully. Persist in contacting the doctor who apparently lost your file. You are in the right. You have proof, and there is no way the doctor will be able continue to deny he provided medical care. You should also speak with an attorney to review your options.
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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