Do I have a medical negligence or malpractice case?

UPDATED: Oct 2, 2022

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Do I have a medical negligence or malpractice case?

About a week ago, I had to bring my child into the emergency room for a mouth injury that needed stitches. The first hospital was unable to help us and sent us to Childrens Hospital instead. They looked at it but there was no ENT doctor available at the time. Instead of waiting until one arrived, they sent us home and told us to follow up with an ENT in about 5 days. ENT was not able to get us in within that timeframe. My child now requires surgery to fix the issue that could’ve easily been fixed with stitches. Stitches do have a timeframe and even if we had been able to see the ENT on the exact date they recommended, it still would have been too late for stitches 24 hours max. We do have insurance Tricare and it will be covered but do I have a lawsuit?

Asked on August 27, 2019 under Malpractice Law, Ohio


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Medical malpractice is negligence. Negligence 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 against the second hospital, it may be possible to settle the case with the hospital's insurance carrier.
Your child's claim filed with the hospital's insurance carrier should include the medical bills including the surgery bill and the medical reports including the surgery.
Compensation for the medical bills is straight reimbursement. The medical reports document the medical treatment and are used to determine compensation for pain and suffering which is an amount in addition to the medical bills.
If the case is settled with the hospital's insurance company, no lawsuit is filed.
If you are dissatisfied with settlement offers from the hospital's insurance company, reject the settlement offers and file a lawsuit for your child against the hospital for negligence. You will need to be appointed guardian ad litem to file a lawsuit on behalf of your child, if your child is a minor.
If the case is not settled, the lawsuit against the hospital must be filed prior to the expiration of the applicable  statute of limitations or your child will lose his/her rights in the matter forever.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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