Do I have any legal recourse regarding possible malpractice?

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Do I have any legal recourse regarding possible malpractice?

About 4 years ago, I had my first hip replaced. I had the anterior approach completed because the recovery time is much shorter. My doctor found numerous calcium deposits in my pelvis that needed to be removed prior to my

right hip prosthetic being installed. I did not have a more recent MRI done a few days prior. I believe if he had done his due diligence instead of relying on an MRI that another doctor from a different practice. The surgery typically last 1 hour but on this day I was under for over 4 hours. I had to have a machine to recycle and transfuse 4 liters of type c blood in to me. My wife was never told of this situation. I was in surgery and recovery for a total of 13 hours. My situation has gotten much worse and I can barely work. I’m on the verge of losing my home.

Asked on June 8, 2017 under Malpractice Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

There are two issues here. The more serious one is time: there is something called a "statute of limitations," or SOL, and it is how long you have to start a lawsuit. If you let the SOL expire, you can not sue, not matter how strong your case. In your state, for medical malpractice, the SOL is only 2 years; while there are some doctrines that can "toll" or delay/extend the SOL if you did not know and *could not* have known of the problem in a timely manner, you write that there were problems at the surgery, which reasonably could have put you on notice to be examined by another doctor and see if the surgury was done correctly or if there were complications. Based on what you write, it may well be too late, 4 years later, to sue.
Second, the issue is NOT whether or not the doctor could have done things differently; the issue is whether he *should* have. In that regard, the failure to do a new MRI himself shortly before surgery could be malpractice, IF a reasonable doctor, given then currently accepted standards of care for this procedure, would have done one. But if it would have been considered normal or reasonable for the surgeon to rely on the prior MRI, he may have done nothing wrong. You need some medical reason, grounded in the standards for acceptable care, to believe the doctor did something wrong.


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