You might have grounds to sue. This would most likely be a medical malpractice lawsuit. In many states like the state in which I practice (Florida), the statute of limitations for medical malpractice is very short (2 years in Florida). This means, that if the injured party does not file a lawsuit within 2 years (in Florida for example), of the date when the victim knew or should have known about the malpractice, then the plaintiff if barred by law from suing. You need to check on what the statute of limitations is in your jurisdiction (state).
Next, you need to gather all of your surgical records before and after the surgery. Most medical malpractice firms have a nurse or doctor on staff to review records and determine whether the doctor alleged to have committed the malpractice, fell below the standard of care. The standard of care is essentially, what a reasonable doctor would or should have done to treat the foot. If the doctor in your situation made a mistake and a doctor is willing to testify that the standard of care was breached (not followed) by the doctor treating you, then you might have a case.
If you are wondering whether you have grounds to sue your foot surgeon, your first move should be to contact a local personal injury attorney that handles medical malpractice claims.
Inquire about the statute of limitations in your state (AZ) for medical malpractice claims.
Not every negative surgery outcome constitutes medical malpractice, but in your case, a few questions would need to be analyzed.
What, specifically, do you mean when you say your foot is not recovering? Is the surgical wound not recovering? Is the problem that you were attempting to address with the surgery made worse or remaining the same to the pre-surgery condition?
Did the surgeon explain to you the risks of surgery? Do you feel you provided informed consent to have the surgeon perform the surgery?
Have you treated with any other physians for this problem before and after having the surgery performed? If so, do their opinions differ from those of your surgeon?
Besides a possible negligent surgery itself, there are other grounds for medical malpractice, such as misdiagnosis or negligent post-surgical treatment. Perhaps your surgeon was not doing a good enough job when they were treating you post-surgery.
Which physician told you that you need another surgery? Did this physician tell you that they need to fix a problem that may have been caused by the first surgery or that wasn't properly addressed during the first surgery?
These are some of the questions that an attorney would want to know to determine the merit of any potential claim that you may have against your foot surgeon.
You would be best served by contacting a qualified malpractice attorney in your state and be prepared to answer their questions to the best of your ability.
I hope things work out for you and I hope your foot is ultimately made better.
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I'm not admitted in AZ (only in CA), but can offer the following general observations.
In a malpractice case, you first must establish that the medical professional(s) acted below the standard of care. That can usually only be established through expert testimony (i.e. in your case, another surgeon, presumably and orthopedist) who is willing to say that the treating doctor was negligent by falling below the standard of care.
Secondly, you must establish that the negligence was the cause of harm. (This is called "causation.") In other words, if the condition is something that he would have had to deal with anyway, or if the condition is something that you and the doctor could have reasonably expected , the defense will say that the negligence of the doctor did nothing to make the condition you went in for worse, or at least no worse than what could have been expected as a possible outcome. The defense nearly always is that surgery is no "guarantee" of a good result. That is typically where these kinds of cases falter; the plaintiff may be able to show that the professional made a mistake, but cannot overcome the argument that the mistake didn't do any additional harm, or that the result was one that was foreseeable.
The third point is the issue of damages. If the negligence caused you to incur additional injuries, and you had to pay for those additional medical services, or miss time from work because of it, those would be your "special damages." Further, most juries implicitly tie the general damages (the pain and suffering damages) to the amount of the medical bills.
I would nonetheless consult with a local attorney specializing in professional (medical) malpractice cases. Most reputable PI/malpractice lawyers will consult with you for little or no cost. Avvo is a good resource for locating such an attorney.
Good luck to you!
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If your surgeon fell below the standard of care, then yes. You would need to search Avvo for a med mal lawyer in your city, and that lawyer would order your medical records and have an expert review them to ascertain whether or not there was a breach in the standard of care.
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A poor outcome is not necessarily malpractice. As you know, surgery has risks even if the surgeon does a reasonable job. The question is whether your surgeon did what he reasonably should have done. This is a question that can be answered by another podiatrist. An attorney could help you find an expert to evaluate your case. In order to have a viable case you have to prove breach of the standard of care, an injury resulting from the breach that would not have occurred without the breach, and an injury of sufficient severity that the value of the case justifies litigation.
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