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How is pain and suffering for a failed fusion along with failure to diagnose determined?

Seneca Falls, NY |

30' fall in 1993 resulted in need for L5 - S1 Ray Cage fusion ( sans pedicle screws ) in 1999 . Fairly certain an incident on a motorcycle in fall of 2007 resulted in fracturing the fusion . Sought help in Febuary 2010 as symptoms worsened . MRI indicated moderatly severe stenosis L4 - L5 . 3 years of cortisone helped legs but not back . Fusion surgeon denied problem with his work based on Lumbar MRIs , 2nd done 7 / 12 . . . and surgeon showed me the door . Total state of disability . Friend found me an out of state Neurosurgeon who had Xray extension and flexion Lumbar views done along with Nuclear Bone Scan of Lumbar showing fractured fusion . This Doc will fix me . My anger over 3 years of failure to diagnose due to " EGO " is off the charts . What do I do ?

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Attorney answers 6


You raise a few issues. First, if your anger has been there for over 3 years for a failure to diagnose, you may have a statute of limitations issue as the statute of limitations is generally two and a half years from the date if the malpractice. There are occasions where that time can be extended or shortened, but that is the general rule. Thus, it is important to know the exact dates and type of your treatment. With respect to how pain and suffering is determined, there is no magic formula. Attorneys look to prior cases that settled, or went to a verdict and were taken up on appeal to see whether the award sustained (reasonable) or reduced (excessive) to get a general idea as to what a case may be worth. Unfortunately, it is very rare if not impossible to find an identical set of facts such as the injury, liability, age of plaintiff, treatment, complaints, residuals, etc. The pain and suffering must also be causally related to the alleged negligence. What you should do is consult a lawyer about the viability of a claim and go over the details with as many specifics as possible. Good luck.

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Thanks for your response. Sorry about not being clear. I just found out about the fractured fusion from tests that should have been done last year when the most recent lumbar MRI was done. I trusted the fusion surgeon who said MRI showed fusion to be good. Come to find out the MRI has limited ability to provide viable fusion info. Extension and flexion xray views along with nuclear bone scan are required to eliminate fracture as cause of pain. Three days ago my emotions were effected by info that I was not diagnosed properly because fusion surgeon did not want to believe his work could have failed and chose not to go done that avenue of possibility, thus leaving be in a world of pain and almost total disability. NOW I'm pissed! I'll get over it. Looking back at what could have caused the failure made me comment about motorcycle. Just speculation.


One of the many tools for putting a number on a case is searching past settlements & verdicts.

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Many factors are used in determining this value. Time, extent of distress, type, age, etc. consult an attorney to review the records and advise you.

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You are asking the wrong question. Before you get to damages, you have to overcome the statute of limitations. If your case isn't barred by time, you must be able to prove that your injury was caused by medical malpractice and was not just a bad outcome related to prior injuries and surgeries. You will have a hard time finding an attorney to take your case due to these problems. Nevertheless, make some calls. Medical malpractice lawyers all offer free telephone consultations.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.


Unfortunately there are multiple issues at hand, first and foremost addressing potential statute of limitations concerns. As far as you valuation for pain and suffering there are multiple factors that can contribute to this. I would suggest researching similar outcomes on your own, if your feel capable. Alternatively I would gather all of your important documents, including dates, and write down as many important details as you can. Once you have done this, you can contact an attorney to address your claim's ability to move forward and potential value. Our offices, as many attorneys do, offer free consultations in this matters. Best of Luck.


Medical Malpractice - Proximate Cause and Damages - By New Jersey Medical Malpractice Attorney Patrick Amoresano: Whether in New Jersey, New York, or other states throughout the nation, certain aspects of pursuing medical malpractice claims are universal, as in this case. Since the fusion was fractured by a motorcycle accident 2 1/2 years before you sought help, your claim would appear to be limited to the unnecessary pain and suffering you underwent on account of delayed repair. Unfortunately, the limited monetary value of a claim to temporary exacerbation of a pree-existing condition will make it hard for you to find an experienced attorney willing to invest a great deal of time and money into a case you'd no doubt want him to take on a contingency fee basis. This has nothing to do with whether or not the doctor had an big ego or was grossly negligent, which does not determine value, and everything to do with the fact that the risk of an inadequate outcome to the case in relation to all that invested time and expense will be seen as to high.

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