What do I do if I had the wrong procedure done to correct a problem?

Asked over 4 years ago - Indianapolis, IN

I had a cyst in my throat that was growing. Went to the ER to have it removed. I was told that it was a common problem and an easy fix. Two years later the problem is back. I have done some research and have found that I had the wrong procedure. What can I do?

Attorney answers (3)

  1. Donald Jack Davis

    Contributor Level 13

    Answered . Talk to a lawyer that has experience in Medical Malpractice. One you determined that was a wrong procedure your state of limitations begins. Also you would do yourself a hugh favor by asking for a copy of your medical records around that time.

    NOTE: This is not intended to be legal advise. You may wish to talk to an attorney of your choosing if you want legal advise.

  2. Steven L Langer

    Contributor Level 7

    Answered . First, you should immediately consult with an Indiana medical malpractice lawyer who can give you specific advice about your specific case after talking to you and reviewing the relevant medical records.
    Generally, Indiana follows a two year occurence based statue of limitations which means that as a general rule you need to have your case filed in the appropriate forum within two years from the date of the occurence, not discovery, of the alleged practice. If your case is not timely filed it might be subject to dismissal due to expiration of the statute of limitations.
    As to the ER doctor performing the wrong procedure, all doctors are required to conform to the appropriate standard of care as would a resonably careful and prudent ER doctor acting under the same or similar circumstances. One question that needs to be answered is assuming the ER doctor breached the standard of care what specific injuries did you suffer as a result of the malpractice. Because of the complexity of Indiana's medical malpractice laws, most lawyers are hesitant about taking a case without significant injuries because of the cumbersome nature of the Act. You might want to take a look at the Legal Guide in Avvo I wrote about Indiana's Medical Malpractice Act.
    Hope this helps.

  3. Jeffrey A. Mitchell


    Contributor Level 9

    Answered . The first question that must be answered is whether the claim is still viable under Indiana's statute of limitations. Some states have very short statutes which will require any claim to be brought within a year of the malpractice. This can be answered by a local medical malpractice attorney.

    If the case is still legally viable, then the records will need to be reviewed by an expert to determine if performing the "wrong" procedure was in fact medical malpractice or merely a judgment call of the physician which happen to turn out wrong. A judgment call is generally not considered medical malpractice. Just because one physician would perform a different procedure for a problem, or even perform the same procedure differently does not automatically mean that the first physician committed medical malpractice.

    The last issue, if you prove that the wrong procedure was in fact medical malpractice, will be what damages did performing the wrong procedure cause you to suffer. Without substantial injury and damages, most medical malpractice lawyers will not take the case when the expenses of prosecuting the case will exceed the recovery to the patient. I wish you the best in your recovery.

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