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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102368
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My son was in a dirt bike accident on March 12th, 2013. He

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My son was in a dirt bike accident on March 12th, 2013. He was flown to a level 1 trauma unit with a burst fracture of C7. He was seen by a couple of doctors, but the neurosurgeon put him in a brace and said that his fracture was stable and he was able to go home in the brace and heal, get an x-ray at 4 weeks, have them sent to him for review, see him at 8 weeks and possibly out of the brace either at that appointment or at 12 weeks. At 4 weeks, we did x-rays and sent them to the physician. He received no phone calls back from this physician despite repeatedly making attempts to talk to him about the x-rays. After a week, finally got to speak with his assistant who stated that the x-rays looked stable but she would have the doctor call. She called later stating that the doctor just wanted to see him at 12 weeks. I asked if that was safe waiting 12 weeks with a neck fracture. She stated yes and to set up an appointment. We did set up the appt to return to this doctor, but upon leaving the trauma unit, they had given us a copy of the CT scan. I opened this report after getting no response from the doctor and the x-ray read was in the report stating that my son had an UNSTABLE fracture with retropulsion of bone into the spine. I then found a new doctor for my son. Upon going to this new doctor, my son had lost strength in the right side. My son was set up for immediate surgery to remove the shattered bones in his neck (anterior/posterior corpectomy and fusion), as otherwise it would eventually paralyze him. This new doctor performed an MRI (as the first one did not) and it showed the spinal canal narrowed from 16 mm to 8 mm at the fracture site. The monitoring showed weakness in the right side and after surgery, he showed weakness in the right side. Our original doctor never contacted us again, even when we missed our appt at 12 weeks. Another doctor on the original "team" at the level 1 trauma unit also told us that this injury would not paralyze my son. We were sent home without any instructions on how to care for him, etc. This is a brief overview of the case. At 17, my son could have been paralyzed by this doctor who failed to do any surgical intervention and sent him home within 24 hours. He fell 25 feet from the air, landing on his feet and falling forward onto his face. I also told the doctors at the first facility that I thought possibly his nose was broke. He never got any x-rays on his face. They also never x-rayed his lower spine or hips and my son complained of pain in the lower back on returning home. Our family physician performed lower x-rays when we returned home which were, luckily okay. I am wondering if we have any type of case??? Negligence/malpractice???
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 sorry for your son's situation. You state that your son "could have been" paralyzed. Just to clarify, can you please tell me what (if any) long term or permanent injury was caused by the original physician's action/inaction?

Or, he is recovering, but simply no thinks to the original physician?

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.
Customer: replied 3 years ago.

He is recovering. The surgery was on May 9th, 2013.

Thank you.

Hmm, he may have a case, but it would not be very strong. But, he may still likely be able to get something in settlement. 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 because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

This is medical malpractice, arguably. As a matter of law, in order to establish a [] malpractice claim, three elements must be proved: (1) the [physician] owed a duty of care to the plaintiff, (2) the attorney breached that duty, and (3) the attorney proximately caused damage to the plaintiff. Bebo Constr. Co. v. Mattox, 990 P.2d 78, 83 (Colo.1999).

Here, the issue is that the injury is HEALING. There is no permanent damage, arguably. If so, the jury would be a lot less likely to award damages if there IS no permanent injury.

However, medical entities carry insurance that bounce to a settlement in many cases just to avoid possible litigation. An attorney is recommended. This is because they do not see you as much of a threat without an attorney since your filing or winning a suit without counsel is unlikely. So they are less likely to settle. But with an attorney, it is likely that actual litigation would be executed, and the insurance company may then offer a settlement just to make one go away.

May I recommend the CO 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.

Then a settlement is usually reached. 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.

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