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RobertJDFL, Attorney
Category: Legal
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Experience:  Experienced in multiple areas of the law.
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My daughter was diagnosed with her 5th brain tumor by a new

Customer Question

My daughter was diagnosed with her 5th brain tumor by a new neurosurgeon, he said it had grown so big and so fast in 6 months that it could be a more aggressive type of cancer and that it had to come out. It turned out to be so small the pathologist could not identify anything. She has a lot of permanent damage from the surgery and I'm told there is nothing we can do he has the right to his opinion. Is this true?
Submitted: 1 year ago.
Category: Legal
Expert:  RobertJDFL replied 1 year ago.

Thank you for using Just Answer. I am a licensed attorney and look forward to assisting you this evening.

Not necessarily. You may have a claim for medical malpractice. There are four essential elements that a plaintiff must prove in a medical malpractice claim:

Duty of Care: when you are treated in a medical facility it is usually conducted on a contractual basis, where you are the patient and the hospital is a provider. When this contract is established, a provider has several duties: posses medical knowledge, skills, care for the patient in accordance with knowledge and skills in a competent manner, and use medical judgment. Any patient treated by a doctor can establish that they are owed a duty of care.

Breach of Duty: in this instance, the “breach”, stands for “breaking the contract”. A breach of duty occurs when the care is exercised in a manner not consistent with the standards of medical care. When handling such a case, and proving that a provider has breached his or her duty means showing what a reasonably experienced professional from the same area would have done in the same situation. Also, expert witnesses are needed to show the breach or deviation of the standard of care. Here, the experts witnesses would typically be other neurosurgeons, who could testify whether the doctor's actions were reasonable and within the standard of care. To put it another way, would other neurosurgeons with similar training and skills make the same diagnosis given the medical evidence? If no, and the doctor acted unreasonably, then you meet this element.

Injury: injury can be classified as one or more of the following: medical expenses, lost income/wages due to injury, inability to earn money, physical and emotional pain and suffering, loss of a loved one. Here, the permanent injuries, the medical expenses and pain and suffering can all be considered injuries.

Proximate Cause: a factual (not a legal) cause of an injury. In case of an injury, when determining a cause, a substantial factor test applies. It is essential to determine if the evidence demonstrates that the results of misconduct could be reasonably foreseeable. An accepted principle is that in most cases testimony of an expert witness is required just because of the complicated nature of the case.

Medical malpractice cases aren't easy. They require a full, detailed careful analysis of medical records and a consultation with a local medical malpractice/personal injury attorney. While these cases are often very expensive to litigate, they typically are taken on a contingency basis, meaning you owe no fees or costs unless they recover money for you.

I wish your daughter well moving forward.

Did you need clarification or additional information about my answer? If so, please reply, I'm happy to assist further. Otherwise, please remember to leave a positive rating for me by clicking on the stars, as experts are not employees of this site and we are only paid if you leave a positive rating. Thank you.

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