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Medical Malpractice/Hematoma caused by upper GI in nine year old


QUESTION: My nine year old son was air lifted from our local hospital to Duke the day after an upper GI was performed and it resulted in a hematoma. He spent three days in PICU and 16 days on the children's floor. He was unable to drink or eat for 17 days. The insurance company refuses to pay, stating the doctor was at fault. My son's complication is extremely rare according to statistics. Is there a lawsuit here?

ANSWER: Nicole: This must have been frightening.  I don't know whether medical malpractice was involved. Much more information would be required as to what actually happened and then a qualified MD would have to study the case to offer a valid opinion.  But what you should be really upset about is the attitude of your insurance company.  What kind of insurance is it anyhow?  The insurance covers for everything except perhaps self-inflicted injuries.  Are they saying if your boy fell out a window they wouldn't pay?  Or if you crashed the car and your son were hurt they wouldn't pay.......because the crash was your fault?  What if another driver caused the crash? They wouldn't pay then?  Absurd. That is absolutly no kind of insurance policy I have ever heard of.  First of all, they don't know the doctor was at fault. They are just presuming that.  An underlying medical problem may have been the cause.  But "cause" doesn't matter at all. Your insurance doesn't just cover medical expenses if the problem was caused "naturally". Oftentimes bad things happen and that doesn't mean it was the doctor's fault. What doctor did they consult on the question?  They have no right to make such judgments.  If you were in my local area and came to see me, my advice would be to send a very strong letter to that insurance company and threaten them, seriously, for what we call in my State "bad faith" or "breach of covenant of good faith and fair dealing" and for which you can be awarded punitive damages as well. I would love to have the case and you wouldn't have to pay anything to me.  I would work for a third of the millions we could get from them for the "bad faith".

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QUESTION: The doctor admitted fault and the hospital admitted the hematoma was caused by the procedure. Several specialist were consulted to rule out pre existing conditions. The insurance company (Blue Cross Blue Shield) has hired an attorney as well. I have spoken to several law firms and I am now waiting for their paralegals to speak to their attorneys so they can let me know if we have a case. If they find that there is no evidence of medical malpractice, what would be your suggestion on how to handle the insurance company?

ANSWER: First of all, if the hospital and the surgeon both admitted (did they really or is that your interpretation of something said?) fault, I can't imagine that the hospital and the surgeon are pressing you to pay the bills.  I doubt strongly that anyone at the hospital and especially not the doctor said "oh, we really screwed up. This should have never happened and it was all our fault". A doctor would never say something like that, in my opinion.  Why should he? Perhaps he said something like "oh, I am very sorry this happened".  That is not an admission.  That is your interpretation.  If the case is so clear cut, I am sure some lawfirm will take the case without any cost to you and when they do, tell them the first thing you want done is for the "riot act" to be read to the insurance company.  The companies' obligation has nothing to do with fault. Even if a judgment of malpractice was rendered, the company still has the obligation to pay.  Their remedy is a cross-complaint for indemntiy against the doctor or other words, "we had to pay a claim that you ......the hospital or doctor..........caused." So, the malpractice insurance carrier for the doctor and/or hospital would ultimately pay.  

Ssome advice when you speak with the lawyers.  Firstly, case to be handled on a strict contingent fee basis and no more than 25% in light of the plaintiff being a minor.  That is the law in CA. Never any money out of your pocket. And, as part of the representation, they need to deal with the insurance company.  P.S.  You know what might be causing the delay in lawyers banging down your door?  I will presume your son has made a full recovery with no residual health problems. If that is the case, notwithstanding the large medical bills, the pain and suffering etc. the case still might not have enough value for a firm to get involved.  The doctor and the hospital will DENY liability saying in effect that it was very unfortunate that your son was so sick but everything was done WITHIN THE STANDARD OF CARE and therefore, they are not legally liable.  A lawyer taking the case is looking at spending many thousands out of HIS OR HER pocket to hire doctors to support the action (rquired in most States) and spend months or years on the case and only gets paid if you win which is never better than 50/50.  I doubt there is a piece of paper anywhere where the doctor or hospital "admit" they are liable or legally responsible.

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QUESTION: The doctor not only apologized, but said this kind of complication from an upper GI was extremely rare. The main doctor in the PICU said, "it would appear to be caused as a result of the procedure." So, indeed they have admitted fault. This of course was after the other specialist ruled out bleeding disorders and such. My son has a chronic illness, but it was in remission at the time of the procedure. He receives constant monitoring medically. Plus, there are pictures of his intestines via the upper GI. There wasn't a hematoma in the pictures. In order the get a hematoma in this location there would have to have been blunt trauma to his stomach.

Please understand that I am acting as the "Devil's Advocate" so that you understand the issues. "Complication is extremely rare" and "caused as a result of the procedure" is not an admission of professional negligence or malpractice.  Just because it is "rare" doesn't mean it happened because the doctor did something he should not have done. Sometimes bad things happen, rare complications happen even when everything is done according to the book.  Now if the "blunt trauma" occured because somebody dropped something on his belly or inside his belly or misused an instrument and banged into some structure and this caused the hematoma and you could prove it by testimony from a gastroenterologist, then that would look like malpractice. Ditto with the comment about the problem being caused by the procedure.  Again, sometimes, oftentimes in fact, there are unanticipated and unpleasant results to procedures done by the book and by the best doctors.  I like to explain the issue this way:

Imagine 10 specialists reviewing the patient's entire history in the smallest detail, the procedure itself, and the aftermath.  If (and this is my standard) say 7-8 of those doctors would say something like:

"My God, what was that doctor thinking?  He should have known better than to ...............and this breach of the standard of care caused the patient's injury.  Furthermore, this injury/complication will cause the patient very serious and long term residual medical problems and disabilities".

I hope your son does not qualify as described above.  If he does, a lawfirm will take the case. I would place a bet of whatever amount that regardless of what was said, the doctor will not just ask how much in damages you want for your son.  He will pay his malpractice insurance carrier the 5-10K deductible and tell them to defend the case.  The very best lawyers will defend him and there is no reason for him to consent to a settlement because the insurance company would cover it and the law is that if he settles a malpractice case for over 30K, he gets "indexed".  That is, it goes down as a public record. Might as well fight the case.  That is what your lawyer will face and why the damages have to be very very high. 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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