what is the burden of proof? is it enough that the operation was not successful and needs to be re-done?
No. You need to show that the physician performed below the standard of care expected in the profession. This needs to be proven by an expert witness.
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No. You must show that the surgeon departed from good and accepted medical practice, and that the departure was a substantial factor in causing injury. Some replacements, such as a hemiarthroplasty of the hip, have a 10-20 percent failure rate for active people within several years. However, if the surgery was done incorrectly, it can make the replacement more likely to fail faster. I just handled a case very similar.
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There are no guarantees in medicine or surgery. A bad result is not enough to prove the doctor did a bad job. It's very difficult to prove that joint replacement surgery was done wrong, even with the assistance of an expert. But, every case rests on its own unique facts. You need a lawyer to investigate for you.
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There are many lawyers who handle defective product cases against the hip manufactures, including our firm. Contact our firm or another local firm and see if you qualify under the class action.
New Jersey Medical Malpractice - Burden of Proof - Standard of Care. By Patrick Amoresano In New Jersey, New York, and other jurisdictions throughout the nation, failure does not necessarily spell malpractice, because medical treatments and procedures always involve a certain element of risk, and undesired outcomes can sometimes happen in the absence of negligence. In most cases, the malpractice question can only be answered by a medical expert practicing the same specialty as the patient's treating physician. There are some cases where the malpractice will appear fairly obvious to an experienced medical malpractice attorney, and in which getting an expert to agree is almost a foregone conclusion. However, taking the case to court and winning at trial or achieving settlement almost always requires the assistance of experts, which is one of the reasons why medical malpractice cases can be very complicated, time-consuming, and expensive propositions.
The only way to know if there was malpractice is to retain a local med mal lawyer who can order the medical records and send them to an expert to review to ascertain whether there was a breach of the standard of care.
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First you need to see if the joint replacement is one that has been recalled. There are numerous orthopedic joint recalls that have and continue to occur. You will need the operative report and the product labels with serial and lot numbers and a quick Internet search may reveal a recall. If not recalled then you need to subsequent treater to verify why the first surgery and implant failed. Make sure you preserve the device if it is removed an replaced. It is your obligation to preserve it as evidence. Hire an experienced medical malpractice - product liability attorney.