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Ely, Counselor at Law
Category: Legal
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my husband had a life threatening fall jan 13, 2013. the life

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my husband had a life threatening fall jan 13, 2013. the life threatening aspect was over anticoagulation which led to serious bleeding ie 26 units prbc, 9 units of ffp and 7 days in icu. he is 79. once the bleeding within the subcutaneous/muscular tissue resolved with vitamin k injections and the 4 complete exchanges mentioned above. he was sent home from the hospital abruptly on feb 6th,2013 following surgical evacuation of a hematoma located at the medial right buttocks. he received no discharge instructions and the discharge papers to be signed both by the patient and discharge nurse were left blank. we did not have medications, what medications to resume or discontinue, when he was to be seen for followup and the home health who came the following day did not have this information either. after 3-4 days i was able to locate the surgeon's office and he did not have an appointment scheduled for followup and one could not be made since the office did not have records on my husband. ultimately we were given an appointment with the surgeon. He was also discharged home with a wound vac. the wound vac was poorly functioning and home health was unable to get a replacement machine from kci as the machine passed the challenge test. this device was to remain in place at all times and have the dressing changed and the wound repacked every monday, wednesday and friday.
the machine did not stay 24 hours at a time and the nurses would come at all hours to replace the dressing as if the wound vac was without suction it put the wound at risk for infection.
on march 23,2013 my husband had a tia, was rehospitalized and the wound care nurse found a retained wound vac dressing from 4 weeks before when the surgeon discontinued the wound vac and sutured the edges of the wound together. the patient had a wound os about 3cm around but the underlying supporting tissue was undermined and had tunneling between the subcutaneous and muscular tissue and the wound was not digitally examined by the surgeon at the time of the discontinuation of the wound vac. there ws also found to be a retained gauze 4x4 at the time of debridement on march 29,2013. after this cleaning of the wound the new wound was 12cm long, 5.5 cm across and 5cm deep and was open to heal by second intention with the support of another wound vac.

i have been very disappointed with the quality of care and consider that no reliable surgeon would have been so laxless about a wound the was 3cm at the os but tunneling made the wound 5 inches under the os. the os was closing and the tunneling was not closing, creating a space where an abscess could form once the surgical opening closed and could have lead to sepsis and possible death in a 79 yo male with multi system disease. i have worked as a nurse practitioner for 42 years and i have only seen such poorly managed planning or forethought in my career at one other time. is this lack of standard of care and consequences for my husband something considered medical or surgical malpractice by the legal system? my husband has essentially turned to an old man with minimal independence since this ordeal started in Jan. his quality of live is markedly diminished and his functional capacity is equally so. i am having to file for our longterm insurance to provide more assistance for me in order for his needs to be met. also the reason he was over anitcoagulated is because his cardiologist gave him generic when bleeding has been a problem on this and his chart is labeled that he is to get trade drug in multiple places. thanks in advance for you enlightenment about this very unfortunate event which tells me there are many others maybe even worse.
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 husband's situation.

is this lack of standard of care and consequences for my husband something considered medical or surgical malpractice by the legal system?

Arguably, yes. However, the final decision would be that of the Court - if you even ever get there without settling. Allow me to explain.

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.

"In a negligence medical malpractice case, the burden is on the plaintiff to prove the following elements of a cause of action: (1) the proper standard of care against which the defendant physician's conduct is measured; (2) an unskilled or negligent failure to comply with the applicable standard; and (3) a resulting injury proximately caused by the physician's want of skill or care." Keel v. Banach, 624 So. 2d 1022 - Ala: Supreme Court 1993 (internal citations omitted).

As you can see, this is fairly generic. The point is to allow the Judge (or a Jury, if either party requests a Jury) to decide how each situation fits into these three elements. Arguably from what you told me, there is a strong possibility of a case.

But it is unlikely that he would even get to trial here. Almost 90% of lawsuits for medical negligence settle out of Court. The medical entities have insurance coverage just for this matter, and they like to avoid the bad press and legal costs. They like to avoid suit in general when they can. Thus, a medical entity is more likely to want to settle this case even if it has a hint of some possibility of him winning.

May I recommend the ___ Bar referral program - 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.

I hope this helps and clarifies. Best of luck.

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