Medical Malpractice/Distal Radial Fracture Malunion
Hello, Dr. Friedman:
In January 2014, I fractured my left distal radius while ice skating. An x-ray taken at urgent care, which I viewed, showed a simple closed fracture, radius only, well-aligned with no need for reduction. I was put in a rigid temporary cast until I could see an orthopedist the following week.
At my first visit to the orthopedic group, I was treated by what I think was a fairly green physician assistant. I was x-rayed again, and put into a molded, adjustable cast. At that time, I had no numbness except in the little finger. I made a point of using my left hand as little as possible.
I believe it was during my second visit, a few weeks later, that I was again seen by the PA. I had by this time begun to experience significant numbness in the fingers enervated by the median nerve, and told them so. I was shown that day's x-ray, and the PA said, in effect, "Look, it's tilted now!" He also pointed out the fuzzy marginal area of the fracture, explaining to me that this indicated the bone was still in the process of healing. The orthopedist came in, basically said and did nothing, and I was sent home.
The numbness got worse, nothing was done, and a few months later, after more complaints, I was sent for an EMG. The results indicated 4th-degree median nerve damage. By this time I was also incapable of fine motor dexterity; it was very difficult to dress, pick up objects, hold onto them, etc. Photos I took (and still have) showed a pronounced dip running from lower arm to wrist. Later reports state that this was a 65-degree malunion.
I was then referred to a hand surgeon, one of the very best in my state, who had just recently joined this orthopedic group. It took about a month to see him. He took one look at the records, pictures, and my wrist, (which had now healed) and said, clearly disturbed, "We'll certainly need to correct this. And now, I'm going to go have a little CHAT with your former PA and orthopedist."
Surgery took place on July 10. It was extensive; the bone was refractured, a bone graft was harvested from my left tibia and inserted into the radius; various tendons were lengthened and released to hopefully relieve pressure on the median nerve; and a plate and screws were inserted. Recovery was painful and lengthy.
At this time (November), I am working a physical therapy program at home and have taken a job that involves typing. I find that the numbness is, if anything, greater than before. The more I use my hand, the more numb and clumsier it gets. I have yet to recover my dexterity anywhere near in full. In addition to the numbness, I now feel at times a burning sensation all through the hand, and pain in the forearm. My wrist has remained straight, however. My surgeon, I believe, did everything possible to help, and I bear him no ill will and feel only gratitude for his part. (Interestingly, he issued me a pre-op image of my crooked, healed wrist, with the placeholder showing the 65 degree misalignment.)
I used to be an accomplished pianist, and although I never made my living that way, I most likely will never play again. I also used to be a cardiac ultrasound technician (although I had not been in that career for a few years, I planned to return), and my scanning hand is my left, in accordance with standard practice. I cannot imagine ever being able to resume to that line of work, since I cannot manipulate a probe long enough or finely enough to image properly.
It's been less than a year, and I understand the statute of limitations for filing suit is two years. I've already consulted one attorney group, a large firm in my city that knows most of the medical community well. They advised that, at this time, it would be premature to pursue a lawsuit, because I as yet have no proof of serious disability. They say, quite understandably, that my surgeon will act in the interests of his employer (as one would expect). They claim that such suits are very difficult to win, especially if the plaintiff is capable of performing at least some kind of work, and retains at least a limited function of the hand. Basically they said, don't bother unless, sometime down the road within the two year period, you find yourself totally disabled. They are the only firm I have consulted as yet.
First: is total and complete disability the only criterion for a winnable malpractice suit or at least a settlement? For heaven's sake, I find it difficult to believe that a health care provider can blithely dismiss what was obviously an injury in need of correction, a correction that should have taken place in a timely manner when the bone was yet unfused, resulting in further damage, pain, suffering, expense, and probably some degree of, if not permanent and total, disability (I realize this last is yet to be determined).
Second: do you think this is the kind of response I'm going to get from every malpractice attorney I consult?
I certainly appreciate any observations you can offer.
I am sorry to hear about your treatment.
The criteria for whether you have a malpractice case is not whether you have a total disability or not. It sounds as if your hand surgeon would even agree you do have a malpractice case. The attorneys are providing you with advice that your likely recovery amount would be limited so that it is not cost effective for them to litigate the matter if you don't have a permanent disability. It costs a minimum of $25K to litigate a malpractice case if your hand surgeon is willing to testify against his colleagues (which is unlikely). It would cost more to hire another orthopedic surgeon and PA to render a standard of care opinion.
There may be another malpractice attorney in your area who is willing to take the case. It sounds as if the standard of care is fairly simple. Michigan is not a friendly state for malpractice cases but there are many attorneys who can see the value in the case.
I hope you do have a more complete recovery.
Very truly yours,
Paul D. Friedman, M.A., Ph.D., J.D.