Medical Malpractice/Cardio Ablasion

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QUESTION: Last year my father had a cardio ablation procedure performed on him. 6 weeks later it was determined that he had to undergo a 2nd procedure. During the 2nd procedure, the surgeon noticed the temp probe in the espogus was rising so the the moved the probe. About 3-4 weeks later he went to see his PMD about difficulty swallowing and was diagnose with an ulcer in the espohgus. 1 week later he had to go in for surgery to repair a Atrio-esophageal fistula. He spent 6 weeks in the hospital recovering for infections and undergoing 2 more surgeries to repair the esophugus. He suffer several small strokes, one major stroke and 1 stroke leading to his death. was there something that the surgeon should have done to diagnose the fistula earlier or is this such a very rare occurance? thanks

ANSWER: Ken:  I am sorry about you losing your father and I do want to help but I can't understand why people think a lawyer can answer such highly technical medical questions.  Only a cardiologist or other medical expert could answer your questions.  What a lawyer does is this: we get a question like yours, the damages seem severe enough and the circumstances such that even a lay person thinks there may have been negligence by the doctor. We then get the medical records and hire, at great expense, a qualified doctor to review the case and give us an opinion.  Lawyers don't usually go to medical school and no lawyer could answer your question unless they happened to have had a recent case exactly on the same medical issues.  During a med mal case you hear testimony from experts on both sides and get a good education.  I wasn't even sure what ablation was but researched it briefly but in nothing I read describing the procedure did I see anything about probes going down the throat.  I did see that ablation is only used as a last resort really after all other attempts to regulate the heard have failed.

It would have been helpful to know your father's age and medical history.  If he was of advanced age ( I will guess he was 80+) and a history of serious heart problems (which I assume was the case), even if you got an expert to say the probe was applied incorrectly, still no lawyer would take the case. Why?  Because the defendant doctor would have experts on his side saying the complications were unfortunate but everything was done according to the STANDARD OF CARE and therefore, even with the poor result, there was no malpractice.  So your lawyer must spend 10s of thousands out of pocket, months or years of work, and for what? A 50-50 chance of winning and getting damages for the loss of an elderly man who was on his last legs anyhow and there is no chance the lawyer would be paid adequately from such a result and with a high probability of not proving malpractice, could lose all his money and time and effort. Not nearly worth the risk of taking such a case.  Also consider, and this depends on what State you are in, but unless a wife or children were dependent upon him for support, the damages even in the strongest case would be very limited.  I hope he did live a long life.  If he was in his 50s maybe it is worth looking into but probably not.

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QUESTION: he was being treated for a-fib, and when he died he was only 65. Also has type 2 diabetes. I won't talk about the care he received. that is another issue. thanks.

Answer
Getting to the point where a law firm would actually take the case and make the huge investment to prosecute the lawsuit is a very distant possibility but I did not mean to suggest that you forget the whole thing; you probably could not do so.  Issues are: was the probe applied in a negligent way such that the injury to the esphogus should never have happened?; was the injury to the esphogus a "substantial factor" in his death? If the injury to the esphogus never happened, was her likely to have survived and lived a relatively normal life for something close to his life expectancy?  If you could get a qualified doctor to answer "yes" to each of these questions, that would be the basis of a medical malpractice case but as I have said, that would be a tough nut to crack.  Also, if  you have the interest, you should check the Statute of Limitations for medical malpractice in your State. Just use google to find out.

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Glenn A. Dorfman

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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

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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

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

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