Questions from the Average Joe: Personal Injury X

by NPHM | November 19th, 2020

Q: I went to the ER after a car accident and they told me nothing was broken. Two days later, still in a lot of pain, I returned and found out I have a broken foot. Do I have a case for medical malpractice due to the misdiagnosis?

A: The trauma and injuries associated with car accidents are often farther-reaching than may be initially suspected. Often, after an accident, you may not feel anything at all, then wake up in a lot of pain the next day. Usually, after an accident, ER staff will conduct a series of x-rays to determine if you have any broken bones. Much of the time, however, swelling may be too severe immediately after an accident to be able to accurately read an x-ray, which could lead to a missed fracture. As a result, following up a few days after an accident is typically a good idea. Because of this, it is unlikely a claim for medical malpractice given the missed diagnosis would be very strong.

Image of a doctor looking at an x-rayIt’s very possible that any reasonable doctor may miss a fracture in an x-ray immediately after an accident. Perhaps more importantly though, medical malpractice cases are extraordinarily difficult and expensive to pursue. Ohio has some of the strictest, most pro-defendant laws in the country, which make even strong cases for medical malpractice hard to bring. With just a two-day delay in diagnosis, provided you do eventually receive the care you need and heal accordingly, it is unlikely that a misdiagnosis case would be able to go forward. That said, you certainly have a strong case for your injuries from the auto accident against the at-fault driver. Whether you have an independent case for medical malpractice does not affect your ability to pursue an accident case for your injuries. An experienced attorney can help you make sure you obtain all the compensation you are due, even if that can’t include anything for medical malpractice.  Either way, an attorney can help you evaluate the situation and bring every claim for compensation to which you are entitled.

Q: I had an allergic reaction to a drug I received in the ER. Can I sue for my pain and suffering?

A: In emergency situations, medical providers often must make split-second decisions, usually for multiple patients at a time. It’s only natural that, sometimes, mistakes occur. Sometimes, these mistakes can have life-altering outcomes. In today’s medical environment, most people who visit an ER are administered or prescribed some form of medication. Sometimes, the medication you receive is not right for you due to its side effects or because you’re allergic to it. In these instances, it is possible to bring a lawsuit for medical malpractice, but very high standards of proof and injury make such a lawsuit difficult. To hold a provider liable for a mistake in Ohio, you must prove that he or she acted unreasonably according to the accepted standard of care for the situation. If you had an allergic reaction to a drug that was necessary to administer given your situation, but you had no record of your allergy, then a lawsuit will not be possible.

Furthermore, depending on the drug and its use, it can sometimes be appropriately judged that the good of you receiving it outweighs the bad, if the allergic reaction is not anticipated to cause a greater potential injury than the condition it is treating.  Likewise, in Ohio, given the difficult nature of medical malpractice laws, most medical malpractice cases require significant permanent injury to justify the cost. If you had an allergic reaction to a drug that went away after you stopped taking it, chances are a lawsuit would cost more to bring than it could potentially win. If, however, the doctors had reason to know you were allergic and your reaction caused significant permanent damage, then a medical malpractice lawsuit may make sense for you. Even if you’re not sure, an experienced medical malpractice attorney can evaluate your situation and help you determine if it makes sense to go forward with a lawsuit.

Q: I bought a burrito at a local restaurant. While I was eating it, I suddenly started choking, and eventually coughed up a bone that had made its way into my food.  Can I sue the restaurant?

A: When the food you eat injures you, it can be a traumatic experience. A meal that is supposed to be delicious and satisfying is suddenly dangerous – the experience can cause both physical and psychological harm. Though you likely do have a claim against the restaurant for their negligence in leaving a bone in your food, such a lawsuit can be difficult and expensive. If you did not suffer a serious injury apart from coughing and the fear that something terrible might happen, there’s a good chance that your injuries do not justify the expense of a lawsuit.

Even so, if you were hurt by food you purchased at a restaurant, your first step should be to notify the restaurant. They will almost always offer some form of immediate compensation for your experience. When you do this though, there’s a good chance they will request the product back from you.  If you were seriously injured by something you ate though, it is important that you do not give the product back.  Particularly if you are going to pursue a lawsuit, you need to retain as much of the evidence as possible.  Additionally, since food is perishable, be sure to take as many pictures as possible to show the condition of the food when you were eating it. In the case of a bone that you choked on, make sure you keep it in a safe place and take pictures of it. Not every instance of foreign objects or debris left in food will justify a lawsuit, but if you lose the evidence it becomes much more difficult to bring a case even for a serious injury.  If you were hurt by something you purchased and ate, an experienced attorney can help you determine if a lawsuit is right for you.  Even if the answer is “no,” a conversation with an attorney can help you determine the right course of action.

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