Legal Question in Medical Malpractice in New York

I was recently informed by an attorney that he was not optimistic about my case as there was a 4 month time lapse between my last visit to my primary care physician and to the date I was transported by ambulance to hospital where I underwent a BKA. In a review of the case synopsis do I have a case? Also I was advised that the statute of limitation was 2 1/2 years from my last appointment with my physician on 7/25/2011. Is this correct or would it have been when I was brought to the hospital 4 months later? CASE SYNOPSIS:

On 12/09/2011, I had a below knee amputation of my right leg due to gangrene setting into foot. A few years earlier I had been diagnosed by my Primary Physician that I had Type II diabetes and was told to monitor my blood sugar levels via a glucometer and advised to follow dietary measures. Blood sugar levels continued being elevated. I was prescribed medication (metformin). A1C test results taken periodically were reportedly in a good range. During the beginning of 2011 I told my physician that I was having swollen ankles and feet to include bleeding, mainly from the right toenails, toenails falling off, numbness predominantly of the right foot including slight skin discoloration and my r/leg giving out from underneath me causing falls. The doctor used what looked like sharpened plastic toothpicks and poked the soles of my right foot and I told him that I could hardly feel it. He diagnosed this as diabetic neuropathy. The course of treatment did not change after that, no further tests were conducted and and he continued reporting to me that my A1C results were good. The rest of my doctor visits were for Rx refills. The doctor scheduled my appointments between 3 and 6 months apart. My last appointment with him before the amputation was on 7/25/2011. On 11/25/2011, I collapsed in my house, could not get up and was brought to the hospital by ambulance. The physicians there said gangrene had set in to such a degree and was present for quite some time. They could not save my leg and it would have to be amputated or death would result. After amputation I was in an extended care center for rehab until discharged on 8/9/2012. Shortly afterwards, about 2 weeks, I went back to my primary physician to get Rx refills for the 8 new prescriptions I was now on. The doctor had a completely negative attitude towards me and stated, "You failed as a patient and I failed as your doctor". (How did I fail as a Patient?) I definitely believe this gangrene infection should have been detected, treated and stopped before it grossly spread and amputation would have been prevented.

•Failure to anticipate, detect or diagnose gangrene

•Failure to culture extremities and, consequently, failure to detect infection

Thank you in advance for replying.

Asked on 10/14/13, 6:22 pm

1 Answer from Attorneys

Kevin Connolly Kevin J. Connolly

Subject to finding a doctor to issue a certificate of merit, I would think you have a strong case. The statute of limitations does not run out until January 2014, so you should have time to fire the attorney (do not release him) and hire new counsel. You followed up with the doctor as he directed. You can't be blamed for not sensing the severe infection since he diagnosed diabetic neuropathy. And now you have a leg off. I would assume that the doctor is on notice of the claim; if not, you need to make sure that he is so that if his malpractice insurance is cancelled, your claim will be lodged before then.

Your lawyer is not making sense here. The log passage of time between appointments is part of the malpractice the doctor committed, not a defense to the claim.

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Answered on 10/18/13, 3:37 am

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