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I was offered a check to reimburse a surgery that didn't go well, if I cash the check can I still file malpractice if need be?

Seattle, WA |

I filed a complaint about a surgery that didn't go well with hopes of preventing my situation from happening to another patient and this check was the response. I did not need to sign anything for this check, nor did I verbally agree I wouldn't sue. The letter accompanying this check says I'm being reimbursed for customer service reasons.

I don't know yet if my foot will make a full recovery or if I will need to have additional surgeries. If need be, I'd like to still have the option to file a malpractice suit, but would still like to cash this check.

One of my complaints was negligence of the operating podiatrist not monitoring my foot and catching it never healed after surgery (although I had complained with symptoms of non-union). The orthopedist who did the required correction surgery for the non-union said he would have done things differently in terms of the surgery itself.

Attorney Answers 5


Consult a medical malpractice attorney before doing anything with the check. You certainly don't want to accept anything that would preclude you from making a claim.

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Consult with a lawyer in your jurisdiction before signing the check. Also, look at the check and the accompanying forms (release and cover letter) to see whether any understanding is expressed about what happens when the check is cashed. Some checks/release of liability indicate - full and final release of all claims stamped on them. Others do not. Regardless, have a lawyer in your state review and advise you so that you do not inadvertently give up your rights. Good luck.

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You need to speak to a med mal attorney before cashing that check. It is very possible that endorsing the check could preclude you from any further action.

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Don't cash it...retain a local med mal lawyer to investigate.

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You should consult with a local medical malpractice attorney to help you evaluate this situation. I often explain that a bad medical outcome does not mean that there was negligence, but the fact that your revision surgeon suggests that the original surgery should have been done differently makes this worth investigating. It still could be the case that there is no negligence here, but it is worth your time to explore this with counsel.

Regarding the check, if you are not intent on waiving your rights to sue, I don't think you should cash or deposit it. Though you state that you did not sign anything or otherwise state that you were resolving a potential claim, accepting this payment will almost certainly give rise to the contrary argument in any litigation.

Keep working to get better, and keep following your treating physicians' advice regarding how to do that. Regaining your health is worth more than any lawsuit could ever get you. Good luck!

Benjamin Nivison is an attorney licensed to practice law in Washington State. This communication does not create an attorney-client relationship between you and Mr. Nivison, nor does it constitute specific advice for your particular legal matter. The information provided in this communication is for general reference and informational purposes only, and therefore should not be relied on as legal advice. Legal issues are by their nature complex, and any person with a legal question should fully consult with a qualified attorney.

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