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Medical Malpractice/TKR and revision within 2 yrs


Had a total knee replacement in 7-2010. Mfg is J & J Depuy knee. Have been in constant pain ever since. Had a munipulation in 8-2010 with no success.Completed all pt and worked diligently at home and then some.I'm under a pain mgmt doc by referral by prior Doctor, both seem content by me being on morphine for life. I sought a 2nd opinion. Current Doc completed revision surgery 9-2012 and it was determined the linears or spacers used in first surgery was only 10mil and current Doc replaced with 17 1/2 mil without any difficulty. Still in constant pain and going thru pt again. I'm only 52 now and my quality of life as well as constant pain has made this a living hell. I live in So Cal

Please help

ANSWER: Sorry you have been having such difficulty but I am a lawyer and before we know whether you have a malpractice case or not, we need to answer a medical question:  why have you not had a better result. Does the problem have anything to do with the spacers?  You can't expect me to know.  Only a trained orthopedic surgeon could offer an opinion.  Maybe it's not the hardware at all.  If your doctors aren't coming up with answers, I certainly could not.  You need to find out what the cause of the problem is.  If it is the result of negligence in the first or even the second surgery and the problem is not correctable but was avoidable, then you might have a malpractice case.  But that is a longshot.  Presumably your doctors are experienced and know what they are doing and wanted a good result. Chances that they did something completely wrong and this is the source of the problem is, well, remote.  You need to find the source of the pain both to get it treated and to then and only then, get some legal answers. Good luck

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QUESTION: I apologize for not being clear. The first Doc used the size 10 mil spacers when installing the TKR. It wasn't until the second Doc went in for a revision that it was noticed the wrong size spacers was used. Aside from therapy pain the knee seems to be tighter, stronger without buckling when I walk.However I have been in severe pain for over 2 years because of a sloppy / loose knee and have already gone thru a revision which should not of happened for years to come.

Had the first Doc used the right size spacers I feel I would not of had to go thru a very painful revision so soon. Bottom line, this revision surgery would not have been necessary if the first replacement was done correctly, nor would I still need to be on pain meds ( Morphine ) last 2 years.

Jeez, I had most of the answer done and lost it.  Here we go again.  As I understand it, you believe that if the correct spacers were used in the original surgery  you would have avoided 2 years of pain and suffering (general damages), and the cost and pain and suffering of a revision surgery. Since the revision surgery you have done well.  First thing the lawyer is considering is the 250K cap on general damages in CA.  So, unless you have big time loss of earnings during those 2 years or major out of pocket medical expenses, the case probably isn't worth it.  Why?  Because the surgeon will have a big time defense legal team with an unlimited budget to defend the case.  The defense will be that using the #10 spacer was based on the defendant surgeon's REASONABLE MEDICAL JUDGMENT.  That is, it was not unreasonable to make that choice.  It isn't an exact science and some educated guesswork is involved to decide on what size this or style of that is going to work best for the patient.  In other words, although it turned out to be wrong, your surgeon could not have known that until he saw the results.  A poor result or mistake in using REASONABLE MEDICAL JUDGMENT is by law, NOT MALPRACTICE. In order for your case to succeed, you would need a very highly rated surgeon be willing to state something as follows:  "Based on the findings at surgery and even before the surgery based on MRI and other clinical signs, it should have been very clear to the defendant surgeon that the size 10 would not lead to a good result for the patient and in fact, it should have been clear to the surgeon that in all likelihood, the surgery would fail and revision would become necessary.  The medical judgment to use the #10 WAS NOT REASONABLE. Any reasonably competent surgeon would have used another size.  Either the defendant did not know what he was doing or misread the MRIs or was not using good judgment for whatever reason during the surgery.  The surgeon was negligent."  So, do you think a surgeon could be found to study your entire medical history and the surgeries and say that?  Your lawyers would have to spend several thousand $$ to find and obtain such an opinion if one existed anywhere.  There would then be 10s of thousands more to file and pursue the case.  Each of the defendant's experts would have to be deposed at significant expense, your expert would be getting paid probably $500+ per hour and $1,500 per hour in trial and it would require hundreds of hours of your attorney's professional time over many months or even a couple of years.  And all for what? Getting 40% of the 250K but a 75% chance of getting nothing.......not even the advanced costs back?  See the problem?  And this would be especially difficult when you walk into court or to your own deposition on two good working knees.  If you were permanently crippled, God forbid, the case would have more the jury that is.  Chances of settling the case short of jury trial for any significant amount making the effort worthwhile would be remote unless the defendant were to fess up and say........."I am so sorry, I don't know what I was thinking. I should have realized the #10 would cause problems".  If he would have said that, I would be glad to have the case but you know he didn't and won't say that.  So that in a nutshell is why my advice is this:  If your knee is working well now, you are feeling ok now, be very very glad about that. Rejoice in that actually and expect that the above discussion is exactly how, in my opinion, every lawyer would analyze the case. Glenn Dorfman

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Glenn A. Dorfman


Thirty-four years experience in personal injury, medical malpractice and medical product liability law. Qualified to answer all questions regarding injuries and the law, except for worker`s compensation. Also wide experience in medical product defect cases ie current litigation regarding the Johnson&Johnson (DePuy)defective hip implant cases and Mirena IUD issues


Thirty-four years experience handling cases involving auto accidents, trips and fall, fires, dog bite,medical malpractice and defective medical product cases with particular emphasis in 2012 and beyond with the DePuy ASR (Johnson&Johnson) defective hip implant cases. Twenty-five years of experience with defective IUD issues as well

Jurisdoctor Degree 1976 and Member in good standing with CA State Bar Assoc. since 1976

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