Skip to main content
Jeffrey A. Mitchell

Jeffrey Mitchell’s Answers

29 total

  • Can I sue my doctor because im pregnant after a tubal ligation that was cut and burnt?

    I'm 12 weeks, 6days pregnant today! My operation was did in October of last year! The doctor knew I was done with having children because of my blood disorder which made me have my children naturally and I have six children!! So he knew I was don...

    Jeffrey’s Answer

    The answer to this question is not clear cut. It depends on what the pathology report says. It is true that if the tubal ligation was performed negligently you would have a cause of action in Louisiana for what is known as a "wrongful life" type action. These cases can be challenging because we must convince a jury that having another child is a "burden and hardship." Some potential jurors may never agree that having another child is burdensome.

    If you can contact my office and get me the medical records, specifically the pathology report, we would be happy to provide you with a free consultation and evaluation to determine whether you have a case under the particular circumstances of your case. My phone number is 504-309-5000.

    See question 
  • Can I sue one department of a military hospital and still be able to use the services of other departments?

    I suffered a blotched colon biopsey, almost bled to death. Statements from the surgeon both before (I thought he was kidding) and afterwards lead me to believe he was not comfortable doing the procedure and had a history of problems with this pr...

    Jeffrey’s Answer

    Military medical malpractice claims are different than state law claims. A claim against a military hospital (like the VA hospitals around the country) is governed by the Federal Tort Claims Act (the FTCA). This cause of action however, does not exist for an active duty military person.

    Active duty military men are prohibited under a case called Feres from suing. The Feres doctrine specifically precludes claims against the military by active duty personnel. However, it does not preclude a case brought by dependents of the active duty person. If you are not active duty, you may bring a claim under the FTCA.

    If you bring a claim, you are not denied rights to receive continued medical care at a VA facility. In fact, in many FTCA cases, the government does not pay for future medical care at a private hospital since you would still be eligible for all future medical care at a VA facility.

    FTCA claims require that an administrative claim be initiated before a lawsuit can proceed. There is a specific claim form that must be filed out to initiate that administrative process. The administrative claim must be given 180 days for investigation and determination. If you have not received a decision within 180 days, then you have the right to request what is called a "right to sue" letter and proceed with the filing of a lawsuit in Federal Court.

    These cases can be tricky, so I would advise you to contact an experienced medical malpractice attorney who has handled military medical malpractice cases to determine whether you can sue under the facts of your case.

    See question 
  • My ex pcp failed to diagnosis kidney stones now I have kidney damage.

    It took over 5 months to be referred to a specialist (only after I complained to hospital administration was I referred). Now I have kidney damage and high blood pressure and 4-5 kidney. Procedures and life long medications.

    Jeffrey’s Answer

    In a medical malpractice case, the patient has the burden of proving that the defendant physician breached the standard of care, and that breach caused him to suffer substantial damages that they would not have otherwise suffered. Whenever a delay in treatment occurs, the key issue is whether the delay was reasonable and/or a judgment call and if not, whether the delay caused the patient to suffer damages they would not have otherwise suffered with timely medical intervention or care. These cases are common in the setting of a delay in diagnosing cancer

    The best way to get a quick answer to your question is to ask your subsequent treating nephrologist (kidney doctor) if the 5 month delay caused the current issues with your kidney. If the answer is yes, that it is more probabale than not that the delay did cause you to suffer permanent kidney damage, then you should contact a local experienced medical malpractice attorney.

    See question 
  • Why Won't Attorneys Take Medical Malpractice Cases Unless Multiple Corrective Surgeries Are Involved?

    I experienced a side effect after surgery and wanted to sue for malpractice on a contingency basis because I now have medical expenses I didn't have before. But a lawyer told me that only cases involving a second surgery to correct mistakes of the...

    Jeffrey’s Answer

    • Selected as best answer

    Medical malpractice cases are difficult to prove and expensive to pursue. Most top medical malpractice attorneys will not take a case without substantial damages. The reason is that in a small damage case, the attorney gets his fee, the experts, who are very expensive, get their fee, and the client is left with little or nothing. We have ethical obligations to potential clients to avoid this type of situation.

    In addition to this, experienced medical malpractice attorneys know that these cases do not readily settle like other personal injury cases (auto accidents for example). If a case with low damages proceeds to trial, not only will the expenses likely exceed any award of damages, a jury will be less likely to find against a doctor that did not cause serious and permanent injuries. Most juries give the doctor the benefit of the doubt if the evidence presented is a close call. Last year, of all the medical malpractice cases tried in this country, only one-third were won by the plaintiff/patient.

    Thus, it is not an issue of how much money an attorney can make--but rather a reflection of these difficult cases in general.

    See question 
  • My mother was in hospital in july of 2009 had chest xrays, blood test they admitted her cause her leg was swollen

    my mother was in lutheran hospital in brooklyn ny july of 2009 had chest xrays and blood test they admitted her cause her leg was swollen my mom is 77 years old. july 2009 chest xray showed chronic interstitial change august 2009 chest xray...

    Jeffrey’s Answer

    Failure to diagnose lung cancer is not an uncommon complaint in medical malpractice lawsuits. However, in any failure to diagnose cancer case (or delay in diagnosing cancer), the key issue is the time frame between the missed diagnosis and the actual diagnosis. The longer the delay in diagnosing the cancer means the patient lost more of an opportunity to undergo successful treatment of the cancer.

    In most instances, these cases are worth pursuing only where the delay is substantial. Depending on the type of cancer and how rapidly it spreads, that time frame could range from 9-12 months. With this type of delay, an oncologist can testify in court that if the cancer was caught 12 months earlier, the patient's chance of recovery/cure were substantially higher. This time frame can also correlate to the staging of the cancer. In other words, if the cancer had been caught 12 months earlier, it would likely have only been a stage one or two. The delay allowed the cancer to grow and/or spread and now it is a stage three or four.

    In your case, the four months delay likely did not deprive your mother of any chance of survival. Stage Four is very serious and statistically has a much lower survival rate. It is almost certain that she was a stage Four in the July/August time frame. Thus, it would be difficult to find an oncologist to testify that the obvious miss of this diagnosis caused your mother additional damages.

    Remember, in a lawsuit, the plaintiff (patient) not only has the burden of proving that medical malpractice occurred, but also that the medical malpractice caused damages to the patient. Given the complexity and expense of these cases, as well as a juror's natural bias in favor of doctors, damages must be substantial in order to justify proceeding with these cases.

    It may be worth asking her treating oncologist if her cancer had been caught in July whether that would have made any significant difference in her prognosis. He will likely tell you that it would not. If he says it would have made a substantial difference, then you should contact a local qualified medical malpractice attorney immediately. I wish your mother the best in beating this horrible disease, 77 is young.

    See question 
  • What rights does a patient have in an ER if turned away for medical treatment?

    I took my 2 yr old to ER with a temp of 103.5 verified by triage nurse. 4 hrs later they still had not even ckd us in. I have INS, but was never asked any info abt myself or child. All the nurses & staff kept talking abt how slow it was this night...

    Jeffrey’s Answer

    • Selected as best answer

    There is a federal law called The Emergency Medical Treatment and Active Labor Act (EMTALA) which was passed in 1986 which requires hospitals and ambulance services to provide emergency healthcare treatment to any person that needs it regardless of citizenship, legal status or ability to pay. This law applies to hospitals that accept payment from the Department of Health and Human Services under the Medicare program. From a practical standpoint, EMTALA applies to virtually all hospitals. Most States have also adopted a State EMTALA law which also applies to their hospitals.

    EMTALA was passed to fight the problem of "patient dumping", a practice previously employed by hospitals when a patient could not pay or when a hospital would transfer a patient on the basis of high treatment costs. Under this law, a patient can only be discharged when

    (i) the condition is resolved or stabilized and the patient is able to provide self-care following discharge; or

    (ii) If the hospital does not have the capability to treat the condition, the hospital must make an appropriate transfer to a hospital with such capability; or

    (iii) with the patient's informed consent, they may be discharged

    Under EMTALA an emergency medical condition is defined as a condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the individual's health in serious jeopardy, serious impairment to bodily functions or serious dysfunction of bodily organs. Since its original passage Congress has amended EMTALA and the definition of "stable" even further.

    In addition to a potential cause of action under federal and local EMTALA regulations, you may also have an outright medical malpractice claim if your child suffered damages as a result of the denial/delay in treatment. You should consult a local experienced medical malpractice attorney immediately.

    See question 
  • Pharmacy at workers company gave wrong prescript, is this workmans comp or negligence on the pharmacy's part??

    My step-father worked at Wal-Mart for years and he was assigned hard manual labor, leading to his back giving out and requiring surgery. Afterwards, he was on painkillers. To get him off of those, his doctor prescribed him a different med. The pha...

    Jeffrey’s Answer

    Generally, an employee may not sue his employer for negligence, even when that negligence is clear cut. Worker's Compensation laws exist to protect employers from lawsuits from their employees. To make it fair, an injured worker does not have to prove any negligence to recover. He only needs to prove that the injury occurred on the job. The employer has to pay for such injuries even if he was not negligent. However, like any law, there are exceptions. I would seriously consider bringing a claim against the pharmacy. I would argue that even though he worked for Wal-Mart, the pharmacy error was not an "on the job" injury and thus worker's compensation should not be applicable. It would be no different that if he was injured in a wreck with a walmart truck when he was not on the job. Worker's Compensation laws are designed to cover injuries that occur at work. You would definitely need an attorney to consult/assist you with this action. Although there is no guarantee that a court will allow the suit to proceed as an ordinary negligence/tort action, I like your chances. Good luck.

    See question 
  • What can i do if a pharmacy gave my child the wrong prescription

    what can i do if a pharmacy gave my child the wrong prescription

    Jeffrey’s Answer

    Pharmacy errors are common. Please see my prior post on 15 ways to limit your exposure to pharmacy errors. These cases are usually brought against the pharmacy directly. If the wrong medication was given to your child and he/she suffered an adverse reaction, then you may have a case worth pursuing. If you caught the mistake before giving your child the medication, or if the medication had no adverse effects then you would not have a case worth pursuing. In either event, you should report this error to the pharmacy and fill out an incident report. It may be worth googling the wrong medication or reviewing the Physician's Desk Reference, which lists all medications and adverse effects, to see what side effects are possible and if it is appropriate to give it to a child. I hope your child will not have any adverse effects.

    See question 
  • Do i need a medical malpractice lawyer?

    I went to the dentist on 4/30 and was notified on 5/1 that the instruments that were used on me durring the visit were not fully sterilized; and that there was a good chance that i was exposed to hiv, aids, hepitatis c,b. they prescribed medicatio...

    Jeffrey’s Answer

    You do need a medical malpractice lawyer. In these types of cases you have damages regardless of whether you actually contract one of these diseases. In many states, in addition to the expenses of the repeated medical monitoring you will have to undergo, you may also have a cause of action for the anxiety and fear of contracting the disease during the period of monitoring. This can be years in some cases.

    Check with your local experienced medical malpractice attorney to see if your state allows damages for this fear. In Louisiana, in order to recover for the "fear" a plaintiff must show that the fear is related to an actual exposure as opposed to a possible exposure. If possible, you should ask the dentist if they tested any of the instruments to see if they contained any of these infectious agents.

    If you do test positive for something, you will have a cause of action against the dentist for causing this exposure and all the damages that flow from that.

    See question 
  • My husband had surgery for a 99% blocked carotid artery on the right side of neck.Voice very hoarse,vocal cord damaged can he

    sue the doctor. This was done on the 6th of april 2010

    Jeffrey’s Answer

    • Selected as best answer

    Unfortunately, one of the well known potential complications of carotid endarterectomy surgery is vocal cord paralysis which is the cause of the hoarseness. It is caused by an injury to the vagus nerve that travels along the carotid artery. Sometimes, vocal cord paralysis/paresis occurs following carotid artery surgery because of pressure or retraction of the vagus nerve by the surgeon. In these cases, the hoarseness is usually transient and full recovery can take up to 12 months. With more serious injuries, vocal cord paralysis can be permanent. Although vocal cord paralysis is usually associated with hoarseness, it can also cause difficulty swallowing.

    The key to determining whether this injury was a known complication which is not malpractice or the result malpractice can only be determined by a surgical expert after reviewing the records. They will want to carefully review the operative report to determine the technique the surgeon used and whether he could have avoided the injury. If the injury is mild and the paralysis resolves, the damages in the case likely would not be high enough, even if there was malpractice, to warrant going forward.

    Contact a local experienced med mal lawyer who can get the case reviewed for you. He will need you to get the records for this review.

    See question