Do we have any grounds for medical malpractice?

UPDATED: Sep 30, 2022

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Do we have any grounds for medical malpractice?

About 5 months ago, my mother had chest pains and went to a family care doctor and had chest X-rays taken. The doctor found nothing. Then, last month, she went to an oncologist who took X-rays and found a 5 cm cancer tumor in her lung. We requested the first X-rays that were done and saw the tumor; there 4 cm at the time. The doctor has stated that he did not see the tumor then but does in fact see that the tumor was present once re-shown the initial X-ray. Had my mother known of the issue when she first went to the doctor, we could have started chemo/radiation then, instead of doing so now 5 months later. The tumor has grown 20 larger in the timeframe as well.

Asked on May 18, 2016 under Malpractice Law, Texas


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

Answered 6 years ago | Contributor

Medical malpractice is negligence.  Negligence 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).
Prior to filing a lawsuit for negligence against the doctor, it may be possible to settle the case with his malpractice insurance carrier.  Your mother's claim filed with the malpractice insurance carrier should include her medical bills, medical reports, X-rays and if applicable documentation of wage loss.
Compensation for the medical bills is straight reimbursement.  The medical reports will document the nature and extent of the medical 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 the malpractice insurance carrier, NO lawsuit is filed.
If your mother is dissatisfied with settlement offers from the malpractice insurance carrier, she should reject the settlement offers and file a lawsuit for negligence against the doctor.
If the case is NOT settled with the malpractice insurance carrier, your mother's lawsuit for negligence against the doctor must be filed prior to the expiration of the applicable statute of limitations or she will lose her rights forever in the matter.

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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