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In September 2012, my back "went out".  Muscle relaxants from a previous bout did not work and after a week, I saw an ER doctor.  During October I saw my primary care doctor several times.  Although he attempted to treat with pain medication (which it turned out I am allergic to) and he did eventually send me to physical therapy, he did not order an MRI, even though I was in EXTREME pain (crawling to the bathroom).  The PT noted (twice) on her report that an MRI was in order.  Finally, in mid November, numbness in my hip spread down to my toes over a weekend.  The primary doctor advised me to go the ER if I felt it was something significant.

At the ER, I saw the same doctor I had seen back in Sept.  She was shocked that I still had not had an MRI and called the primary doctor right then and there.  He assured her he would order one the next day.  The next day, his office informed me that the insurance company refused the MRI.  After 3 days of back and forth calls to him and the insurance company, I was able to determine that he had not submitted a sufficient case for an MRI (they never denied the request, only asked for more info).  Once he did it properly, it was approved immediately.  I had surgery less than a week later.

It has been 9 months now and the numbness in my right leg has not improved.  I am unable to drive and am off work.  This is a major hardship to my family.

Additionally, although the first surgery did improve the excruciating nerve pain down my leg, I ended up having the same disk herniate 2 more times (3 total) until we finally went forth with a spinal fusion.  2 weeks after the spinal fusion, I came down with a staph infection.  It is unclear (to me) if it was a MSSA or MRSA since both terms exist in the paperwork I have.  I had an emergency surgery related to that infection, then spent a month in a nursing home receiving IV antibiotics every 4 hours around the clock. Once released, I had home health care for another month and a total of 2 months with a wound vacuum.  

Might I have a case against the primary doctor for failing to order an MRI in a timely fashion (causing the nerve damage that seems to be permanent)?  Might I have a case against the surgeon and/or hospital for the staph infection?  Aside from my own issues, my children have been severely impacted by having their mother ripped away from home (they're 9 and 7).

Thanks!

Answer
Let me start by saying that I am very sorry you have had to deal with this nightmare.  Here are the issues in determining whether there is a viable malpractice case.  (1)  Do you have or could you obtain solid evidence from a qualified orthopedist/neurologist that if the MRI was done earlier, that the outcome would have been very much different?  I just don't think you could get such an opinion and any lawyer taking your case would have to spend thousands to find and retain such an expert.  Sure, an MRI was indicated presumably but it would be pure speculation (based on the information you have provided) that an earlier diagnosis and fusion surgery would have improved the outcome.  Maybe it would have but you, through the testimony of an expert, have the burden of proving it and..........speculation is not proper evidence.

The staph infection is a very different issue.  Such infections are all too common.  They happen every day with people having amputations or even worse.  By definition, for there to be malpractice in a legal sense, the provider must have provided medical services BELOW THE STANDARD OF CARE.  Unfortunately, the Standard of Care at this time,in most places, does not require that hospitals totally prevent staph.  That should be the standard but it isn't.  Unless you can pinpoint where the staph came from, such as an unsterilized instrument, etc., or, unless you are in the State of Kentucky where some years back there was a successful staph case, I don't think you have any recourse.  Please understand, from your story I would conclude that (1) you did not receive optimal care and (2) staph infections should not happen and can be prevented, but a lawyer taking your case must invest tons of his own money and hundreds of hours of work over many months or longer and for what?  1/3 of the result to your case.  This means unless the negligence is truly eggregious...........that is, no doctor in their right mind would do what they did in your case and........your injuries are severe and permanent, it just isn't worth the risk to the lawyer to take the case.  You don't mention the outcome but I presume that means your back is better and you are functioning much better now.  If so, congratulations.  But if so, then the damages are not great enough notwithstanding all of the pain and suffering that you went through.  The lawyer must evaluate the case in terms of economics.  Is there a good prospect that he/she could succeed and earn a fee sufficient to repay the costs and pay handsomely for the work and effort involved.  In your case, I doubt it.  Hope you find this useful

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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

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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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