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I had an medical ultrasound performed by a non registered tech

who missed a real cell...
I had an medical ultrasound performed by a non registered tech who missed a real cell cancer. I did not know the cancer was missed until 1.5 years later when I had another ultrasound performed. The reading physician and the tech missed the ca on the first ultrasound. I have been told that legally, this falls under the no harm no foul aspect of the law.

My question is: would a situation such as this fall under the reckless endangerment law in NC? My contention is that the mobile company who employed the tech was supposed to use only registered techs to perfom ultrasounds because they operated under the guidlines of the American College of Radiology.
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7/1/2013
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102,924
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me whether the 1.5 years has caused the cancerous cells to grow, or in any other way to make the cancer more aggressive in any way, which demanded/demands more medical action than what you would have had to take had it been found 1.5 years ago?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
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Customer reply replied 4 years ago


Hi---The initial US was performed in March 2010. In retrospect, the tumor was 2.5cm. The next US was performed in January 2012 and the tumor was 4cm. The tumor was removed during a patial nephrectomy in March 2012.

Friend,

Thank you for your clarification and I am glad to hear that it was excised successfully. I am going to write out an answer that includes a little legalese to hit upon some nuances (apologies in advance) so please allow me a moment while I do so...
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Apologies for the momentary wait.

Let us discuss all of this together, okay? I want to touch base on the "no harm no foul aspect of the law" as you described it, too.

Causes of Action<
First, we have to discuss this. To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state.

For MEDICAL NEGLIGENCE cause of action, the following has to be shown: (1) the standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages. Lowery v. Newton, 278 SE 2d 566 - NC: Court of Appeals 1981. Notice number 4 - damages? That is your "no harm no foul" rule, as you practically put it. If there were no damages, then there was no medical negligence, arguably.

RECKLESS ENDANGERMENT is a criminal action, not civil. Reckless Endangerment is not a cognizable claim in North Carolina. Franklin v. Wiggins, NC: Court of Appeals 2006. In other words, it is not a civil cause of action, but criminal. Normally, it is used if someone almost runs someone over, or a gun shot close to one's person, etc.

So to answer your immediate question - no - reckless endangerment does not apply here. I am sorry.

Wait a Second...
But you know, even if it does not, medical negligence may still. This is because what if the operation to excise was deeper than it would have been has the growth been caught 1.5 years ago? What if the recuperation is harder? Th drugs are more drowsing? The recovery is longer? That can be argued - so that damage WAS done by the 1.5 years missing.

Is this a open and shut case? No. But, it may be enough for a settlement. Almost 90% of lawsuits for medical negligence settle out of Court. The medical entities have insurance coverage just for this matter. They like to avoid suit when they can. Even though the case is not too strong in an open trial, the medical entity is more likely to want to settle this case even if it has a hint of some possibility of you winning. Talk to a few attorneys - it does not hurt to get a few opinions. May I recommend the NC Bar referral program - <a href="here">here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

The attorney should take this on a contingency basis, meaning they do not get paid unless you do. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.

Again, remember, your case may not be 100% winnable, but it may be enough to push the medical entity into a settlement by threat of a suit. Your argument may be that there WAS damage, since the 1.5 years caused the growth to enlarge, and by this, the recuperation/recovery/operation/etc was harder on you. It may be worth a shot.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Ely
Ely, Counselor at Law
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