Failed Surgery or Medical Malpractice?

Louisville, KY Lawyer Helps Clients Find Answers

Video Transcript:

Tad Thomas:

Once you do think that there is a bad outcome or you think there might be medical malpractice, you ought to contact an attorney as soon as possible to make sure that your rights are protected.

Rob Rosenthal:

How do you know if you or a loved one suffered a surgery that just went wrong, or if there was a medical malpractice, and where do you turn for help? Well, that's what we're gonna find out right now, because we're going to ask the lawyer. Hi again, everybody. I'm Rob Rosenthal with AskTheLawyers.com, and my guest is Kentucky attorney Tad Thomas. I wanna remind you right off the bat, if you wanna ask Tad questions about your specific situation, it's easy to do. Just go to AskTheLawyers.com, there's a button in the upper right hand corner that says Ask a lawyer, you click that and it doesn't cost you anything to ask your questions. Tad, it's good to see you again, thank you for making some time in your busy schedule to talk to us.

Tad Thomas:

Thanks for having me Rob, good to see you. 

Rob Rosenthal:

So some surgeries, let's just say right off the bat, some surgeries are just... They have bad outcomes. They don't turn out always the way you'd hope they would, right? But that doesn't necessarily mean that it's medical malpractice? 

Tad Thomas:

Right, it's medical treatment is as much of an art as it is a science, and so a physician can do everything right and not be able to fix you, and that's just part of it, and so... You can't assume that just because you had a bad outcome that the doctor did something wrong.

So what is the difference then? Explain to me as far as the law is concerned, what's the difference between a bad outcome and medical malpractice?

Tad Thomas:

Sure. Doctors are required to comply with what we call the standard of care, and so the way that a jury would hear the question in a trial is, what would a reasonable doctor do in the same or similar circumstance, so I'm gonna give you an example. If during a surgery, a doctor uses a particular technique that the expert may not use, but a lot of other doctors do it, it's not unreasonable. So if you have a bad outcome, that's not medical malpractice. However, if a doctor comes in and there's published studies that say, "Don't ever use this technique in this type of surgery," and the doctor does it anyways, they have deviated from the standard of care. That's when it becomes a medical malpractice case.

It would seem to me that, first of all, the patient or loved one of the patient, they may not know right away that that something did go wrong. Does that happen sometimes? 

Tad Thomas:

Absolutely. Let me give you an example. In cases of retained devices or retain sponges, so a surgery is done and a sponge is negligently left in the body during the surgery. That may not come up and you might not find out for weeks, months or maybe even years after the fact. 

Rob Rosenthal:

Wow, that's really interesting. So can the patients or the loved ones of the patient, can they count on the doctor or the hospital to tell them a. that something went wrong and b. that it might not have been, that it was someone's fault, that it was negligence?

Tad Thomas:

Yeah, no, you're probably not gonna hear from the doctor in some states you might, 'cause in some states, they have laws that say that a doctor can go and apologize and that it can not be evidence in a trial, in other states, they don't have that, and so more likely than not, the doctor is just not going to say anything. And you gotta remember, there's something called the statute of limitations as well. The statute of limitation says that if you wait too long after an event like medical malpractice, your lawsuit may get thrown out. There's a time limit on it. Well, in many states, when you have a medical malpractice case, because you may not know that there was malpractice, then the law says the year, the time frame, it doesn't start to run until you find out about it. So in some sites, that's not the case, so they may think, Oh, if we just hide it long enough, they won't be able to file a suit. In other states that's not applicable, but once you do think that there is a bad outcome or you think there might be medical malpractice, you ought to contact an attorney as soon as possible, to make sure that your rights are protected.

Rob Rosenthal:

Do they need to go see other doctors to get second opinions or third opinions Tad or should they talk to the attorney first and then they help them through that process?

Tad Thomas:

Actually either one. If you're more comfortable going and getting a second opinion from another doctor, I highly encourage it. I always tell my clients, "I'm not a doctor." I don't give medical advice, and so it's important to get second opinions in many cases, I had a case where we were looking at it as a medical malpractice case, I consulted one of the... It was a child, actually, that was the victim of the malpractice. I consulted what I've considered one of the foremost experts in the country on this particular type of surgery, and the doctor that I consulted said, the expert said, "Yes, this is malpractice. But the good news is I can fix it." So it was great because I was able to send my client up to Cincinnati, Ohio, where this doctor was, and the child got the appropriate treatment, so we ended up not even filing a medical malpractice case, but I was able to get the child the treatment that he needed.

Rob Rosenthal:

That kind of leads me to what was gonna be my next question, what if there are further surgeries needed to fix what may have been malpractice in the first case? Does that affect the case or affect damages? Explain that to us.

Tad Thomas:

Sure, it's really state to state, so I can tell you in Kentucky, if you go back to the same physician, the law says that if a doctor messes up and commits malpractice, that the law will give that doctor the opportunity to try to make it right. So if they can go back in and do a second surgery to fix it, that will extend your time in order to be able to file suit. So it really all depends on state to state, but if you need future treatment, they proceed down parallel paths, so you don't file a lawsuit to the exception of getting treatment, you don't get treatment to the exception of filing a lawsuit. Both can proceed at the same time. And in many states, they should.

Rob Rosenthal:

Tad some people will say, "Well, these kind of medical malpractice suits are bad for doctors and hospitals and eventually bad for patients." What's your take on that?

Tad Thomas:

My take is to think of the alternative. If there's no consequences to someone's actions, why would they have any reason to change the course of conduct? And for me, medical malpractice actions are important to make sure that doctors comply with the standard of care. Now, most doctors are gonna do the best they can anyway, regardless of lawsuits or not, I agree, but you have... There are doctors out there that refuse to change the way they do things, and an absent a lawsuit that forces them to change, they will never change. And so this is a very important... medical malpractice suits are very important for two reasons. One is to make sure that the victim is compensated so that they're taken care of as opposed to the taxpayers taking care of them and insurance companies having to give them the care that they need while the negligent party gets off and second, to hold people accountable for their actions.

Rob Rosenthal:

Lots of great information is always Tad. We appreciate you making some time to answer our questions. 

Tad Thomas:

Thanks for having me again, Rob. 

Rob Rosenthal:

That's gonna do it for this episode of Ask the Lawyer. My guess has been Kentucky attorney Tad Thomas. Remember, if you'd like to ask Tad questions about your specific situation, it's easy to do. Go to AskTheLawyers.com, hit that button in the upper right hand corner that says Ask a lawyer, and you can ask away right there. Thanks for watching, everybody. I'm Rob Rosenthal with Ask the Lawyers.

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