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Medical Malpractice/Birmingham Hip Resurface Issues

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QUESTION: Mr. Dorfman,
I had a BHR on August 23, 2011.  I was a 51 year old female who was very active and chose this surgery after extensive research, believing it was the best option for my lifestyle, age and health at the time.
I have been in physical therapy off and on since the surgery, hoping to get to a level that I could continue the activities I had enjoyed before.  
I have continued to work as a court reporter although it is very difficult to sit through a day.  I cannot ski (40 years as a downhill skier), I cannot run (was my main exercise activity), I cannot participate in activities that require quick reflexes because my leg does not function correctly.  I cannot lift my leg at all if I cam lying down, nor can I get out of a car or out of bed without lifting it. I have pain in my groin area, sometimes severe, and pain in the general area of my implant.  I have continued to be as active as possible, purchasing a road bicycle, but I have problems if I am too active or if I have to clip out in an emergency. I have tried swimming, but it irritates my implant area when I kick, so have to modify my stroke. I feel that the surgery was misrepresented to me.  I would have gone directly to a hip replacement if I would have had any idea that I was going to be so limited and in such constant pain.  I have seen a specialist that at one time recommended I have this surgery, but no longer performs this surgery on women at all and has recommended I have a revision so that I can enjoy my life on a better level.  I know the possible complications of surgery and am reluctant to have a revision, since I think my issues are more complicated than the doctors have related to me.  Do I have any legal recourse?  
Thank you.

ANSWER: Firstly, I think any thought of a medical malpractice case is out of the question. In CA the Statute of Limitations is ONE YEAR from the time of the negligent advice or negligent surgery or from when you began having problems and then had the duty to investigate the problem.  One applicable exception would be that that the clock does not run while you are still under the care of the defendant doctor.  Idea behind that is that as long as you are treating with the negligent doctor you are unlikely to get the information that would lead you to suspect malpractice.

However, even if the Statute was not a problem, I still don't see a viable case.  The cost of any med mal case is extremely high in terms of cost to your attorney for all of the experts and other elements of the case and months or years of work.  Unless the liability is very very strong and the damages equally high, it just isn't worth it.  Think of it this way:  If 10 orthopedic surgeons studied everything about your case both before the surgery and since, at least 7-8 of them must say something like this:  "My God what was Diana's surgeon thinking? This was not the appropriate surgery for the patient and it was below the standard of care to perform it.  There is no justification for doing this surgery on this patient as the problems she is having now were quite foreseeable"

You see?  Unlikely you will find such a level of support for the case.  Also, the case is not viable, at least at this point, because of the damage issue.  I fully appreciate the terrible time you have had, the impact on your personal and professional life, the pain and suffering, but, there is a probable solution that will be a great relief to you. To digress, a med mal case is not viable unless the damages are severe, disabling and likely permanent in my opinion.

Your relief will probably be found in a total hip replacement.  Incidentally, I am deeply involved currently in cases against the DePuy Corp. (Johnson *& Johnson) due to defects in their metal on metal hip implants.  In the past I was very successful in cases against the Sulzer Corp. for defects in their hip implants.  Therefore, I have been intimately familiar with a good number of people (my clients) that have undergone REVISION surgery.  That is, their first total hip replacement failed due to product defects and then went on to have those implants removed and replaced.  In every case I can think of, they derived great benefit from the revision surgery and actually achieved the results they had expected from the original surgery.  There may be a couple exceptions but clearly, that is the approach you need to discuss with your orthopedist.  What is the alternative?  Go on for the rest of your life like you have been that last couple of years?  I don't think so.  That is what you need to do.  At this point there is no legal recourse but very hopeful medical recourse.  Good luck.

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

QUESTION: I agree that there is no medical malpractice case.  My "slow burn" is that this surgery was touted as being a good alternative for a certain group of people.  The BHR was FDA approved in 2006 and I think that many doctors were performing this procedure to get their numbers of surgeries up, in addition to becoming more experienced.  Having worked in the civil litigation arena for 30 years, I do understand the hurdles that one goes through to litigate.  I think that there is a large population of post-surgical resurfacing patients that have had less than acceptable results.  I also feel that the metal-on-metal issue is also something that should be explored.  Thanks for your feedback.  I agree that a hip replacement is probably the correct procedure, but I do feel that there should be some recourse for people that are in my situation that have spent time rehabilitating from a surgery, only to have to have a revision.  I now know, having gone through a major surgery, that I will have a totally different frame of mind stepping into a hospital again.  It just doesn't seem fair :)
Oh Well!
Thanks,
Dianna

Answer
As I am sure you understand, medical science is far from perfect. What is thought to be the magic pill or the magic surgery turns out to be far less and sometimes even harmful after the population of patients is large enough to cause alarm.  I understand your anger and disillusionment.The doctors certainly wanted a good result for you.  But they didn't guarantee a result and the best you the patient can do is take faith in their advice and hope for the desired result.  The resufacing procedure was considered a more conservative and safer approach which we generally would usually opt for of course but it may just be that nothing short of total replacement would solve your problem. Get that revision. Chances are strongly in your favor that you will be at full activity again.  Good luck

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Glenn A. Dorfman

Expertise

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

Experience

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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