Knee replacement went wrong is it medical malpractice?
Recently on our legal forum a user asked, “My husband had a knee replacement six months ago. During surgery the surgeon broke my husband’s femur. He ended up needing a blood transfusion and had to stay in the hospital for weeks. He is still having difficulty. I am wondering how you know when a doctor’s actions are negligence and what constitutes medical malpractice?”
Understanding the risks of Knee replacement
According to the American Association of Orthopedic Surgeons, nearly 300,000 patients undergo knee replacement each year. And although this surgery is known to be risky and lead to other complications, if your husband decided to undergo knee replacement surgery, this means he gave his legal consent to the procedure, despite the risks.
Specifically, he agreed to have his doctor replace the end of his femur with a metal cap and the tibia with a metal stem. (In some cases, the doctor may have also had to replace the posterior cruciate ligament on the sides of the knee joint).
Now, it’s important to note that all surgery is risky. In fact, even if the doctor does everything right and all of his actions were proper, your husband was at risk for infection, nerve damage, stiffness, bleeding, blood vessel injury, loss of motion, and chronic stiffness in the knee. This is if everything is done right.
Understanding medical malpractice
So how do you know if it’s medical malpractice or if your husband simply suffered a possible side-effect of a serious surgery? It can be very difficult to know for sure. In fact, many surgeries do not go as expected.
So what do you do first? First, you need to review the notion of negligence and make sure you understand what it means before filing a medical malpractice claim against the doctor.
Specifically, negligence occurs when a doctor, who had a duty of care towards a patient, violated that duty of care, also referred to as “standard of care.” What does that mean? Although the term standard of care is not specifically defined by law, it’s generally accepted to mean that the doctor who performed the knee surgery followed accepted treatment standards that another doctor in a similar situation would have followed.
If after reviewing all the evidence of the surgery and reviewing your doctor’s actions you are convinced that the doctor who performed your husband’s surgery did not follow accepted medical standards and the injuries your husband suffered were due to the doctor’s actions, then you can talk to a medical malpractice lawyer.
Consider, however, filing and winning a medical malpractice for knee surgery can be tough. In fact, even if you hire a lawyer and he hires an expert witness who testifies that your doctor made mistakes, the defense is likely to hire their own expert witnesses who will testify that the doctor was not negligent.
In this case, it might come down to which medical expert the jury believes is more credible. This could be true even with a broken femur, which a medical expert may testify could have happened regardless of which surgeon performed the knee replacement.
What if the doctor warned you about the risks?
There is also another issue to consider- the issue of informed consent. All doctors are required to provide their patients with information about the risks of surgery. If you suffered a side-effect which was clearly identified as a particular risk the doctor may be protected from liability, assuming there is no clear evidence of negligence.
What else do I need to know about filing a medical malpractice claim for knee surgery?
Due to rising health costs and lobbying efforts medical malpractice claims are under attack. Not only have some states limited the amount of damages which can be recovered in claims, rules have also made it more difficult to sue doctors than to sue other claimants.
Although laws and regulations may vary in your state, it’s important to understand malpractice laws. Specifically, you will have a limited time to file your claim and failure to file within the statute of limitations will eliminate your right to compensation.
You will also have to hire an expert witness to testify on your behalf and you may have to get a pre-suit requirement prior to filing. Finally, as mentioned above, your state may have limitations on the amount of damages you can recover for your injuries.
How much will I win for my injury case?
There is no guarantee you will win your case. If you do win, however, it’s likely your case will be settled out of court and your compensation will depend on the amount of pain and suffering, lost wages, and other medical expenses you have incurred.
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