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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33746
Experience:  Began practicing law in 1992
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My Mom, fit and active now 84, had a knee replacement 2 yrs

Customer Question

My Mom, fit and active now 84, had a knee replacement 2 yrs ago. The Dr nicked a nerve behind knee and now she has drop foot. At the time the Dr. Said it "should" regenerate within a year. He gave her PT for a short time & then stopped - she got worse. She continued PT with another office - got better but the Dr was recalcitrant in giving her the prescription ..but did.. She asked him to pay for it and any care she may need. He said no -reluctantly gave a few more weeks PT she had to pay for... she filed a civil suit.. wanting only for him to do the above... he sent his insurance rep to have "lunch"with both parents to see what mom wanted.. She said only that he pay for the therapy and home equipment to do more therapy.. she said she would get back to my mother. My mother continued to arrange therapy through medicare- her secondary was exhausted and hoped that in time the foot would heal as suggested. we served papers today as 1st first court date is next wk
we have no Lawyer
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

What court is the current case filed in?

Was it filed within one year?

Customer: replied 1 year ago.
LA Supior and yes all papers so far filed on time for civil
Nothing filed on small claims
Customer: replied 1 year ago.
We are in process of serving him as we speak as the first hearing is at the end of month
Expert:  Dwayne B. replied 1 year ago.

Since you've filed in one of the upper civil courts you can't now file in small claims unless you dismiss the upper case without prejudice.

Usually the initial hearing in anything other than small claims court is just to set dates, etc. It won't be the actual trial.

Does she have an expert report?

Customer: replied 1 year ago.
Would love to call you in this tomorrow but for now. We do not have an expert and need one can you help
We also do not have an attorney yet
Expert:  Dwayne B. replied 1 year ago.

No, unfortunately not. We're only allowed to have contact through the website. The site offers telephone consultations but most of the legal experts don't do those because of the State Bar rules.

You can find an expert at and you would want one who is in the same specialty as the doctor. They will want to see most of the medical records, etc.

You can find an attorney at, under Area of Practice enter Medical Malpractice.

I'll answer your original questions below, then you can ask any follow ups.

if the civil suit fails can she then file a Small Claims court from a different angle.. bad faith?

No, you can only file one lawsuit and in it you have to allege all causes of action. In medical malpractice cases no matter what else you allege it will always be considered a medical malpractice case.

Also what will happen at this first hearing if she goes in without a lawyer.. will she be able to state her case?

As I mentioned above, the initial hearing is usually not the trial but it can be a lot of different things. She needs to get an expert report ASAP because the doctor is going to file a Motion to Dismiss based on his own report and if she doesn't have an expert report the court is going to have to dismiss the case and she won't be able to refile.

Is there any legal aid advice or assistance for women her age?

I'm not aware of anywhere she can get assistance on a medical malpractice case other than a medical malpractice lawyer. Age doesn't have any bearing on this issue.

Customer: replied 1 year ago.
Great on all accounts just want to know since she filed a civil suit over a year ago and if she disses it under the terms you mentioned can she then open a small claims ? since she could not do both until one was discontinued? meaning now the civil case is in it's second year and court is due in Jan 2016
Expert:  Dwayne B. replied 1 year ago.

No, since she is outside the one year statute of limitations if it is dismissed in the upper court then that will prevent refiling it in the lower court.

Customer: replied 1 year ago.
I will consult with her now and check back tomorrow
Thank you so much
Expert:  Dwayne B. replied 1 year ago.

You're very welcome.

Best wishes to you and please don't forget to leave a Positive Rating so I receive credit for my work.

You can still ask follow up questions even after issuing the rating. The question will lock open after you rate and no longer time out and close.