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Medical I able to file a lawsuit?

Los Angeles, CA |

In 2007 I broke my left ankle. After going to the hospital I was referred to a "specialist". He said he would perform surgery and it would be good as new. It's 2012 now and I'm about to go on my 7th surgery. I've been using a walker & wheelchair ever since my 2nd surgery. Everytime I'd call his office all they would suggest is to stay in bed & put ice on my leg despite the fact that I was in extreme pain & swelling. The hospitals/doctors that have seen me recently are all amazed at what lousy job was done. I've been told that the wrong hardware was used & is all in pieces. My leg is really infected to the bone and the specialist is considering amputation. It turns out that the doctor that made the first 6 surgeries is just a General Surgeon & NOT an Orthopedic Surgeon. Can I sue?

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Attorney answers 3


It sounds like you may have a medical malpractice case. The time limit for such suits is 1 year from the date you knew or should have known about the malpractice but it any even no later than 3 years.

My law firm handles medical malpractice cases all over the state of California. You can read about these cases at . Our office gives free consultations over the phone 24 hours a day at 800-816-1529 x. 1.

No attorney/client relationship is or shall be created by this response on Avvo to non-clients of The Law Offices of Norman Gregory Fernandez.


You might have a medical malpractice case, but you definitely need an attorney if you wish to proceed. Moreover, in professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care, except in cases where the negligence is obvious to laymen.

Your obstacle might be the statute of limitations. In California, pursuant to California Code of Civil Procedure § 340.5, a medical malpractice action for injury or death must be brought within one year from the date the claimant discovered the negligent act, but no more than three years from the date of injury.

Specifically, Code of Civil Procedure Section 340.5 provides as follows:

"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."

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.


As both of my colleagues have indicated, you may have a statute of limitations issue--you may have waited too long to sue. But since Mr. Fernandez has offered to consider your case, you should contact his office, and provide them with all the information they need to evaluate your case, including the statute of limitations.

I am licensed only in California and this response is provided as general information only. It is not intended to be legal advice. Legal advice must be based on the exact facts of the particular situation, and by necessity this forum is not appropriate for discussion of specific, exact facts. Contact a lawyer for more specific advice. My answer to your question on AVVO does not create an attorney-client relationship.