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RobertJDFL
RobertJDFL, Attorney
Category: Personal Injury Law
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Experience:  Experienced in multiple areas of the law.
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I had gastric bypss surgery on 12/17/12. At the time of that surgery a liver biopsy was d

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I had gastric bypss surgery on 12/17/12. At the time of that surgery a liver biopsy was done. When I asked the surgeon's office what the biopsy had shown, I was told I had fatty liver which would go away on its own as I lost weight.

I recently (this past Weds.) learned that the correct diagnosis on the pathology report stated that I had mild to moderate steatohepatitis with cirrhosis. No one ever told me that, until this past Weds., and none of my health care providers received a copy of that pathology report.

I am also a person with multiple sclerosis and had been taking a medication called Tysabri which has a side effect of liver damage. I recently stopped taking Tysabri for another reason but had I known of the correct diagnosis in December I would have immediately stopped that medication months ago.

I am currently dealing with a liver whose functions have all become abnormal within the past few weeks. Repeat blood work to test my liver functions was done on Friday.
Submitted: 11 months ago.
Category: Personal Injury Law
Expert:  RobertJDFL replied 11 months ago.
Thank you for your question.

In this instance, you may wish to speak with a personal injury lawyer about a possible medical malpractice claim. Even though it happened a year ago, under New York law, the statute of limitations, or time to file a claim in such a case, is 2 and 1/2 years. The statute reads in part:

"A medical malpractice action must be brought within two and a half years from the act or omission complained of or from the end of a continuous treatment during which the act or omission took place. N.Y. C.P.L.R. § 214a."

In order to prove a medical malpractice claim, a plaintiff must successfully prove:

1) You were owed a duty of care (this is easy, as every doctor/hospital/doctor's office, etc. owes a patient a duty of care)

2) The accepted standard of care - What a similarly qualified medical professional would do under comparable circumstances

3) Injury -What injuries you suffered as a result of not getting the correct diagnosis. It is sometimes possible for a doctor or medical professional to be negligent, but if there was no injury as a result, there is no claim for malpractice

4) Proximate Cause -It has to be established that your injuries were caused by the negligence of the medical professional(s) treating you, and not some other reason.

5) Damages (This can be things like physical injury, time missed from work, future medical expenses, etc).

Many of these things, such as establishing the standard of care and your injuries, can and typically do require the testimony of an independent physician/expert witness.

Personal injury lawsuits like medical malpractice are typically taken on a contingency basis, though - so if a firm takes your case, they front all the costs and expenses, and you only pay if they recover money.

Also, you may want to look into filing a complaint with the Department of Health against the doctor who gave you the improper diagnosis.
Customer: replied 11 months ago.

I guess my next questions would be in regard to #3 and #4.


 


3) Injury -What injuries you suffered as a result of not getting the correct diagnosis. It is sometimes possible for a doctor or medical professional to be negligent, but if there was no injury as a result, there is no claim for malpractice


 


I would have to prove somehow that my current liver issues are in direct correlation to this misdiagnosis, correct? How would one do that if he was aware of all medications that I was taking prior to surgery and that by continuing with this particular medication that could have accelerated the rate of damage to my liver? I'm not certain how I would prove this particular piece of the puzzle.


 


I would certainly call him negligent but the nature of NASH cirrhosis is that it is not able to be reversed.

4) Proximate Cause -It has to be established that your injuries were caused by the negligence of the medical professional(s) treating you, and not some other reason.


Again, with NASH cirrhosis, there is no chance for the liver to simply go back to normal. I should have immediately been monitored from that time on for liver issues, had an endoscopy done, and been removed from medications that could further harm my liver. None of that was done regularly and now I am awaiting to see what my most recent blood work shows.


 


This type of cirrhosis can cause primary hepatocellular carcinoma, which I am waiting to see if I have. Obviously, if the NASH cirrhosis turned into cancer because I had not been monitored that would be a clear injury and proximate cause. Barring that condition, how could I prove that continuing Tysabri could have caused my liver to be further damaged?

Expert:  RobertJDFL replied 11 months ago.
You are correct about #3 -and generally, this has to be proved through expert witness testimony, diagnostic testing, lab testing, your medical records, etc. For example, you may get an expert witness to look at your records, labs, etc. who will give an opinion (which they felt they could support and back up under questioning, obviously) that the failure to give you the correct diagnosis resulted in further damage to your body. Furthermore, they might opine that had the correct diagnosis been given to your doctors, you could have started treatment right away, and not done more damage to your system.

It's the same with #4, and this is why medical malpractice claims often cannot be established without the use of expert witnesses. Only another medical expert could really give a qualified opinion as to whether your condition as it stands, based on your records, lab results, etc. are a direct result of the failure to get a timely diagnosis, and not, say, your prior medical condition.

RobertJDFL, Attorney
Satisfied Customers: 10266
Experience: Experienced in multiple areas of the law.
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