Should I file a lawsuit against an ophthalmologist for malpractice?

Asked almost 2 years ago - Lemoore, CA

I am currently serving in the U.S. Navy in CA. In Sept. 2011, I was hit by a plastic shovel causing a reoccurrent corneal abrasion. . A Navy Optometrist referred me to an ophthalmologist out in town. From there doctor did PRK surgery to correct the corneal abrasions. 1 day after the procedure I started losing sight, and developed some serious pain. The next morning I had lost complete eyesight. The doctor had me come in that night, to see another doctor. He said it was normal gave me vicodin and let me go home. It ended up being staff infection and took 3 weeks to pinpoint the infection. My vision is 20/200 in that eye due to a central scar from the infection. Pre-surgery was 20/20. I now need a corneal transplant.

Additional information

The initial PRK surgery was FEB. @ and it is now Sept.

Attorney answers (6)

  1. Christine C McCall

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . None of the responses offered here deal specifically with the fact that you are active military and that your injury occurred in the course of med treatment provided to you in that status. I think that is an important fact that bears significantly on your legal rights in this circumstance.

    I suggest that you contact one of the attorneys here that is experienced with the additional issues raised by your military status. Attorney Rixon Rafter is excellent: http://www.avvo.com/attorneys/22030-va-rixon-ra...

    My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice.... more
  2. Lowell Hale Steiger

    Pro

    Contributor Level 12

    Answered . Consult an attorney immediately because you may be running into a Statute of Limitations issue based upon California Code of Civil Procedure Section 340.5 which state in pertinent part:

    In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.

    There is no way to determine at this point whether or not you have a viable case. However, if you pass the Statute of Limitations, you will be forever barred from pursuing this matter.

  3. Ernest Charles Tosh

    Contributor Level 3

    1

    Lawyer agrees

    Answered . I do not practice in CA but medical malpractice cases are based on the doctor deviating from a known "standard of care". If a doctor performes his duties in a reasonable manner and follows the established standard of care for that type of case, even if there is a bad outcome it is not necessarily medical malpractice.

    In your case you need to consult with a local medical malpractice attorney. Most medmal attorneys will consult with you for free and if they agree to represent you will cover all the costs of the case. When the case is settled they will then be entitled to a percentage of the settlement.

    I would also advise you to seek this consultation as soon as possible because medical malpractice cases are not like wine, they do NOT get better with age.

    Good Luck

  4. William Emil Cassara

    Pro

    Contributor Level 18

    1

    Lawyer agrees

    Answered . The key here is that you are on active duty, and this was a physician referred to you, probably as part of tri-care. That dramatically affects whether you can sue, and the time limits for doing so. Contact an attorney experienced in military medical malpractice.

  5. Rixon Charles Rafter III

    Contributor Level 20

    1

    Lawyer agrees

    Answered . It isn’t possible to assess your situation in this kind of a forum (avvo). Your situation is a bundle of several complex legal concepts (sovereign immunity, active duty service, negligence, mal practice—any one of which presents significant obstacle to your recovery of compensation (not insurmountable, but significant)).

    However, some initial concepts can be identified. The most important of which is that a service member cannot sue the government/military for injuries sustained incident to service. It comes from the legal idea of ‘sovereign immunity’—the King is immune from suit—a notion we inherited from England when our nation was formed.

    In the 1950’s the US Supreme Court handed down a decision known as the “Feres Doctrine”. In a nutshell it forbids active-duty members who suffer a personal injury from suing the government for damages. Unfortunately, this includes medical malpractice or negligence by military health care providers. Many lawyers and military members are attempting to work legislation through the Hill to correct the injustice of the Feres Doctrine, but it remains the law of the land as of today, and would bar you from suing.

    Active-duty members are/can be compensated in other ways for malpractice — retirement disability, Social Security and VA benefits.

    In some cases, the federal courts DO allow active duty personnel to recover “derivative damages”. If allowed by the state where the negligence occurred, a service member can recover for lost ‘society and services’ derived from an injury, to a spouse or child who has filed a Federal Tort Claims Act (FTCA) claim.

    BTW, an FTCA claim in a medical malpractice action must be filed within two years of ‘accrual’ of the claim. ‘Accrual’ is defined to occur when a claimant knows he/she has been injured and is aware, or in the exercise of reasonable diligence should be aware, of the cause of that injury. It sounds as though one year has expired; you would need to move quickly to preserve your rights before the statute of limitations bars any chance of recovery. The FTCA also requires that you first file a claim with the Navy before you file under the FTCA. The Navy has six months to answer the claim and counteroffer, deny, or approve your request for compensation.

    Recommend you immediately contact a military attorney experienced with FTCA claims. That attorney will be able to review all your specific facts and will help you narrow your options, the risks, and the best course of action—that is going to be your best option to obtaining some measure of justice.

    READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia.... more
  6. David J. McCormick

    Contributor Level 20

    Answered . You need to request all your medical records from this office and them contact a local medical malpractice attorney to see if the care and treatment you received was substandard.

    Good luck.

    DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being... more

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