I live in New York City, I had an accident on November 15th 2018 and broke my ankle. The doctors told me I needed surgery and over the course of of 5 months I had three surgeries.
My last surgery was on May 5th, and in my surgery they were supposed to remove 2 screws that were meant to keep my distal fibula implant secured by screwing into my distal tibia, and removing it later after the bone has calloused.
Even though I felt it after the surgery, I didn’t find out until March 18th that they only removed one screw because the other had broken off into my bone. Now I have a foreign object inside of my bone that was initially uninjured and it causes me pain and limited mobility.
Do I have a case against the surgeon? Thanks for any information you can share.
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.
We are sorry to hear of your suffering in this ongoing matter. You may have a valid medical malpractice claim against the surgeon.
Medical Malpractice in General
In a medical malpractice case, a medical professional is liable for a patient’s injuries if he or she harmed the patient due to negligence.
- Negligence means that a surgeon or physician provided medical care that fell below the level of care a reasonable professional would have provided under similar circumstances.
- Liable means that the professional must compensate the injured party for any financial harm caused by their negligence. Even though the medical professional is the liable party, that party’s insurer typically provides the compensation.
Proving Malpractice and Failure to Remove Two Screws
Not every instance of inadequate or improper medical treatment will result in medical malpractice.
Malpractice only occurs if a physician’s treatment fell below the appropriate level of care.
The appropriate level of care is typically described as the type of care a reasonably competent surgeon, practicing the same kind of medicine as your surgeon, would have provided under the same circumstances.
To prove surgical malpractice a patient has to show that:
- A surgeon owed the patient a duty of care
- The surgeon took some action, or failed to take an action, that violated the applicable level of care
- The patient was injured because of this act or failure to act
Here, it is clear that the surgeon owed you a duty of care since you entrusted him or her with the care of your ankle. Further, it’s obvious that you were injured because of the last surgery.
The question remains whether or not the surgeon deviated from the applicable standard of care.
The facts you present suggest that the surgeon’s actions fell below the care of a reasonable person. The surgeon was supposed to remove two screws in your ankle, but only removed one. The remaining screw then broke and became lodged in your bone, which is the cause of your pain and limited mobility.
Malpractice and Delay in Informing
The surgeon’s delay in informing you of the complications in your last surgery may also constitute malpractice.
The surgeon performed the last surgery on May 5, 2019. But you were not informed of the complications until March 18, 2020. A reasonable surgeon would probably notice an error in surgery in less than ten months.
Damages for Surgical Malpractice
A medical provider (or their insurance company) must compensate an injured patient for any injuries that resulted from the provider’s malpractice.
An injured patient can receive compensation for:
- The expense of additional medical care and rehabilitative services after the surgery
- Out-of-pocket expenses for medications, wheelchairs, and related needs
- Lost wages
- Pain and suffering
You can definitely pursue any of these if you successfully raise a medical malpractice claim.
Statute of Limitations
An issue in your case involves the time in which you must file a personal injury lawsuit against the surgeon.
A statute of limitations sets forth the time frame when a person has to file a lawsuit. A person loses the ability to pursue compensation if they fail to file it within the given time.
According to New York Civil Practice Law:
“An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition…”
At first glance, this statute means you must file a malpractice case against the surgeon by November of 2021 (or 2 years and six months after the last surgery).
However, the same rule also provides a limited discovery period:
“[W]here the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.”
Given this language, you have one year from the date you discovered the facts regarding the remaining screw in your ankle to file a lawsuit. This means you have to file a case by March 18, 2021, or you will lose the chance to do so.
Contact a Medical Malpractice Attorney for Help
It’s always smart to discuss a medical malpractice case with an experienced malpractice attorney.
As mentioned above, these cases not only involve surgeons but their insurers as well. The insurance companies will likely have vast resources to defend against a claim.
Surgical malpractice cases naturally involve medical procedures. These procedures can grow complicated, and experts may have to testify to explain why a particular surgical outcome took place.
Your case also involves New York’s discovery rule, and issues may arise with filing a claim within the applicable statute of limitations.
These points all suggest that it’s in your best interest to speak with an experienced malpractice attorney. A lawyer will help protect your interests and increase your chances of receiving the compensation you truly deserve.
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.
We wish you the best with your claim,
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