UPDATED: Oct 1, 2022
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Somone I love dearly was given a stroke by the radiologist during carotid stenting.
While a consent was signed that stroke was possible, we were told 1-2, we
didnt know the radiologist wasnt going to use dystal embolic protection, he never
told us verbally or mentioned it in a consent form. Later we found from the
insurance company that their claim was denied due to not using dystal embolic
protection, they stated that the procedure was considered investigational,
experimental and unproven. How can I present it to an attorney? Attorneys dont
like to work much on the case that doesnt guarantee 100 win, wont even try. By
searching different articles I found The use of embolic protection techniques during
carotid angioplasty and stenting is currently a standard of care. Interventionalists
almost uniformly use an embolic protection device Carotid Artery Stenting, EPD
designed to reduce the risk of stroke caused by thromboembolic material dislodged
during Carotid Stenting. Given the contemporary level of acceptance of embolic
protection, any routine carotid stenting done without embolic protection should be
done only with Institutional Review Board’s approval and patient consent.
Asked on December 29, 2018 under Malpractice Law, Texas
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 3 years ago | Contributor
You present the case to an attorney the same way you presented it here: the radiologist failed to use the standard protective measure which are well known, would have been simple to apply/use, and whcih would have vastly reduced the risk of a stroke. That formulation shows that what the doctor did was negligent or unreasonably careless, since he failed to take basic steps to avert a potential tragic outcome.
Another key factor though is the identity of your loved one. Wrongful death claims are largely based (not entirely, but largely) on the lost economic or earning potential of the deceased, since it deprives their family and dependents of support. There is a huge difference in potential award (winnings from a lawsuit) for a, say, 40-year-old who was earning a good salary, since he/she had decades of significant earnings ahead of him or her, and a retired elderly person. For example, and ignoring the "time value of money," interest, etc., a 40-year old earning $100,000/year could easily earn another $3mm+ if she/he works until age 70 or so; a 67-year old on $12,000/year of social security might reasonably only receiving another $120k - $150k in benefits given an average life expectancy. Since malpractice cases are typically taken on a contingency basis, where the attorney receives a percentage (say, for sake of discussion, 30%) of the award, in the one case, the attorney might make $1.2mm; in the other case, perhaps only $40-$45k. Malpractice cases can take a great deal of time for a lawyer, can take years to resolve, can be costly for the law firm...a lawyer might well not take a malpractice case given the possibilty (not the guaranty; no case is guaranteed) of earning only $45k after years of work. So if your loved one's age and economics did not suggest a large possible award, you have trouble interesting a lawyer.
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