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Medical Malpractice/Nerve damage after knee surgery


Hi and thanks for considering my question-
In April of '09 I had a patella resurfacing surgery
done. My surgeon put an Arthrosurface implant
behind my patella. The incision was made towards
the outer part of my right knee.  A few weeks
post-op when things should have been settling down
the point of the incision started causing an unusual
swelling with pressure pain. As months passed
my knee in general was recovering from the surgery
but this swelling and pressure at the incision was getting
worse. Thinking that there was scar tissue my OS did a
scope. Post-op the scope he said there was minimal
scarring and with post-op office visits my OS started getting
disinterested in helping me. It finally took him saying
"your knee will never be perfect" for me to realize
it was time to find another OS. I am an educator and
being on my feet all day with this problem caused a
great deal of swelling and pain. I wanted someone with
experience with the Arthrosurface products so I called
the company to ask for those physicians in my area. They directed
me to an OS who is the most caring doctor I've ever known!!
He began with some noninvasive procedures first and
when nothing worked we decided it was time for
another scope. He saw more scar tissue and some
arthritis and cleaned everything up.  The problem was
still there. Thinking there had to be more underlying
problems, we decided a total knee replacement was the
next step. That was done on 6/11/12 and I'm still having
the same swelling, pressure and pain as before.
I just today had a visit with him and he said the only
thing he could determine, based on me telling him about
the numbness from the first surgery, that it had to be
nerve damage causing the inflammation which is
causing the pain. I have used a lot of my sick time
at work and spent lots of dollars to try and fix the problem
that my original OS caused. Right now my 2nd OS is trying
a topical solution for about 4 weeks and if that
doesn't help he's referring me to a neurologist.

My question is do I have a malpractice case against
the 1st OS??  I am in pain daily from the time I put
my feet on the floor in the morning til the time I go
to bed at night. In my visit today with my 2nd OS he
suggested I find another job. I have 16 years experience
as an educator. I feel I have too much invested to
just quit but my leg is so full of pain at the end of a
school day I have to go home and ice then heat til
I go to bed every single day...and that doesn't even help!!

I'd appreciate any advice you can give me. Also, I
live in Louisiana.

Lynn LeJeune

Lynn: I am sorry you have such a problem. I will preface my reply by saying I am very sympathetic and I have spent a career representing people injured in accidents or by incompentent doctors and surgeons.  In other words, I am in your corner.

Firstly, you should keep in mind the LO Statute of Limitations.  It is ONE YEAR from the date of the surgery or ONE YEAR from when you DISCOVERED that you may be the victim of malpractice.  That would be one year from when the second OS mentioned the nerve damage but, under no circumstances, more than THREE YEARS from the surgery date.  That's your time limit.

Do you have a malpractice case?  You must understand that even if it was definitively found by new surgery or perhaps and MRI that a nerve was injured in the original surgery, that in itself does not create a malpractice case. Thousands of surgeries everyday have poor results and that is because it is unavoidable.  In other words, surgeries are difficult and things can go wrong and surgeons are not required to guarantee that nothing will go wrong.  In order to have a malpractice case, I like to explain it like this:  Imagine 10 OSs studying your entire medical history and even having a video of the first surgery.  To have a viable case, in my opinion you would need at least 7 of them to sign the following statement:  "We do not understand what Lynn's surgeon was thinking. This probably wasn't even the best choice of treatment for Lynn's problem and the surgeon handled it incorrectly.  Once he began he did not follow protocol to avoid damage to the xxx nerve which is a known risk to this surgery.  This failure to follow proper procedure was the cause of the nerve damage and the cause of Lynn's problem since that time.  Furthermore, there is no good fix for the damage that was done. We believe that she will have some level of pain and impaired use of that knee on a permanent basis as a result of the negligent surgery".  Even if you found an OS to say something like that and you sued, the surgeon through his insurance company would have high priced lawyers and even higher priced ortho experts to say that although they regret the outcome, everything was done within the standard of care. No case.  So then you go to trial.  Your lawyer has already spent probably 20K out of his pocket and the trial will take another 10K+ to get the experts in court and other myriad costs.  It is 18 months since the suit was filed.  Probably a 75% chance of a defense verdict. You get nothing and your lawyer has lost all that money and hundreds of hours of his time. Even if you win, if you are still able to walk, it isn't going to be a million dollar case and if it didn't have the possibility of a big award like that, you can see that it is unlikely that any lawyer is going to accept the case.  Bottom line, even if the surgeon was negligent it would be too difficult to prove that because the question is not black or white, it is very grey and the the cost benefit ratio is just not nearly attractive to any lawyer I can imagine.  So, my advice is to get to the best surgeon you can find and get the problem fixed medically.  Legal recourse is remote at best and won't make your knee feel better in any event. Good luck.

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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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