Is it malpractice if a doctor gives someone an out-of-date hip replacement?

UPDATED: Sep 30, 2022

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Is it malpractice if a doctor gives someone an out-of-date hip replacement?

In Dec 2015 I tripped and broke my hip. After 17 months, I’m still having pain in my hip. I went to an orthopedic doctor and he told me the surgeon that replaced my broken hip gave me a hip replacement that was probably 20 years old. He called it a clunkard, said it was usually given to 90 year olds who used a walker to get around anyway. I’m 64 and have always been very active, until now anyway. He said I should get it replaced right away. He also said that the other doctor just replaced the ball part of the joint, and should have replaced bothe the ball and the socket. The surgeon that performed the operation retired 2 weeks after my surgery and went to some remote place in Mexico. Do I have a case against him, the clinic where he worked, or the hospital?

Asked on May 28, 2017 under Malpractice Law, Oregon


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Based on what you write, the surgeon likely did commit malpractice, since he used an inappropriate replacement and failed to perform the proper or recommended full-joint replacement. 
However, whether you can hold the clinic or hospital liable will depend on his relationship with them: was he an employee? Was he an owner/partner (e.g. in the clinic)? Did they exercise control or supervision over him? If all they did was essentially let him use their facilities but had no deeper relationship and no control over him, you might not be able to  hold them liable--which could be critical, since it seems like he may have moved beyond effective court jurisdiction or power. 
It would be worthwhile for you to speak with a malpractice attorney about your recourse and whether you can, as a practical matter, recover compensation from anyone. Many such attorneys provide a free initial consultation to review cases; you can confirm this before making an appointment to speak with the lawyer.

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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