What are my rights if I had gastric bypass surgery and when drain was placed my lung was punctured?
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What are my rights if I had gastric bypass surgery and when drain was placed my lung was punctured?
When first drain was removed by surgeon a lot of fluid was leaking and I discharged like that. About a week later I got an infection and went to hospital. I was told that I had fluid in my abdomen. Another drain was placed in abdomen and that is when my lung was punctured. The fluid also went into my lung and had to get another drain placed for my lung. I spent a week in the ICU.
Asked on August 31, 2016 under Malpractice Law, California
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 8 years ago | Contributor
Medical malpractice is negligence.
Negligence on the part of the doctor is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Negligence on the part of the hospital is the failure to exercise due care (that degree of care that a reasonable hospital would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit for negligence against the doctor and hospital , it may be possible to settle the case with the doctor's malpractice insurance carrier and the hospital's insurance carrier.
You should notify both insurance carriers in writing that you will be filing a claim for negligence.
Since you have been released by the doctor and hospital, obtain your medical bills, medical reports and if applicable documentation of wage loss. Your claim filed with the insurance carriers for the doctor and hospital should include those items.
Compensation for the medical bills is straight reimbursement. The medical reports will document the nature and extent of your condition and will be used to determine compensation for pain and suffering which is an amount in addition to the medical bills.
Compensation for wage loss is straight reimbursement.
If the case is settled with both insurance carriers (doctor and hospital), NO lawsuit is filed.
If you are dissatisfied with settlement offers from the insurance carriers , reject the settlement offers and file a lawsuit for negligence against the doctor and hospital.
If the case has settled with one, but not both parties (doctor and hospital), only name the party with whom the case has not settled as a defendant in your lawsuit.
If the case is NOT settled, your lawsuit for negligence must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.
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