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Medical Malpractice/Mastitis that became an ulcer, which was infected with MRSA


QUESTION: Dear Mr. Dorfman,

I recently returned from the hospital with my wife, who had a mastitis on her breast that became an abcess, that was infected with MRSA (a antibiotic resistant bacteria, usually contracted in hospitals). She was hooked up to an IV for 5 days... (I assume she got this bug when she gave birth at the very same hospital where she went to get the mastitis treated). In any case, she went to the hospital with a badly infected, swollen breast, they measured her temperature at 104 degrees, put her on antibiotics, sent her to get an ultrasound to see if there was an abcess, and the ultrasound doctor did the scan and said there was "no abcess". Unfortunately there was a huge abcess, that became even bigger in the next 30 hours, at which point it was diagnosed visually by another doctor, and drained. During those thirty hours, my wife was in tremendous pain, pumped full of antibiotics(that didn't work because it was MRSA and because if there's an abcess antibiotics don't work anyway).  She now has a massive hole in her breast. My question concerns the ultrasound diagnosis. The doctor who eventually drained the abcess expressed some surprise that the ultrasound doctor didn't see the abscess.  I talked to the technician who actually did the scan (the ultrasound doctor just read it) and she said there was clearly something there, and was surprised when I told her that the doctor had said there was "no abscess". Is this negligence?  My wife is 32, has a one month old baby, does no drugs, is totally clean living. I understand that it is difficult to prove that she contracted the MRSA at the hospital when she gave birth, but is there a case to be made that the ultrasound doctor was negligent in saying that there was "no abscess"?  She is now going to need plastic surgery to reconstruct part of her breast - once it heals. She cannot breastfeed from that breast.  And teh worst irony, is that the hospital that misdiagnosed her is the same hospital that gave her MRSA to begin with.  Your opinion would be greatly appreciated.

ANSWER: Taking everything you say at face value as to the time line, the issue is clear: Did the 30 hour delay result in very substantial damages to your wife that would not have resulted if the abscess was noted and treatment began 30 hours earlier???  Presumably, on my part, no, the 30 hours didn't make a tremendous amount of difference to the outcome.  She still would have needed the drain and the surgery and whatever else was done since  you agree that simple antibiotics would not have treated the problem. So, even if the doctor really screwed up and missed the diagnosis and proper treatment was delayed, at the end of the day, it didn't cause substantially  more injury or pain and suffering or anything else then she would have had in any event.  Wouldn't you agree?

What you need to understand is that any malpractice case is very very expensive. In a case like this your lawyer would be foolish to accept the case unless he/she was prepared to advance maybe 10-20K before the case is resolved.  Experts must be hired, costly depositions taken of defense experts, many other costs of the ligitation. And unless the damages are well into the 6 figures, the risk is just not worth the reward.  I guarantee you that if any such suit was filed, the insurance company for the defendant doctor would hire medical experts of the highest caliber to say that although your wife's condition was unfortunate, everything their doc did was WITHIN THE STANDARD OF CARE AND BASED UPON REASONABLE MEDICAL JUDGMENT......even if it turned out to be wrong.  There is definitely no viable case here. God forbid, your wife died or had to have half her chest removed and therefore the damages were huge, maybe a lawyer would have taking a shot.  Best of luck

---------- FOLLOW-UP ----------

QUESTION: Many thanks for your answer.  I have another related question regarding MRSA.  From everything I've read it's very hard to win MRSA cases. However, based on what I heard from nurses (while my wife was in the hospital for the abcess) there had been other similar cases of MRSA in women who had delivered in that hospital at around the same time as my wife. I'm trying to track them down now. Do you think if several women contracted MRSA at around the same time at the same facility there would be a case for negligence?

I would note that at around the time she delivered there was a nurses' strike on, and we were attended by substitute nurses that had been flown in and that did not seem very competent. In addition, I thought the facilities were quite dirty.

You won't be able to track those other women down unless you know of them personally. The hospital certainly would not cooperate both as a privacy matter for the patients and the hospital is not going to help you build a big lawsuit against it.  My suggestion is that you contact the local or State agency that regulates and licenses the hospital. File a complaint. In the complaint mention the anecdotal evidence you have that there was something of an epidemic in a particular department and at particular time. If your hunch is correct and there was a cluster of MRSA cases and if the agency conducts an investigation and if they do confirm a cluster and if they trace the cause to a reasonably preventable source and if you can then find a lawfirm to spend really big money on the bet that through litigation.........maybe a class action certification would be the way to go.............and if the class action Judge certifies the class action and if the Judge orders a notice to go out to all other potential class members (the other mothers), then maybe and just maybe, there would be a big case against the hospital.  As you see, lots and lots of ifs.  But go to the agency in any event. There may be similar complaints on file. See what happens.  Note that there is a Statute of Limitation that would apply. Varies from State to State but you can google it

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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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