AVVO Question: What Happens When Doctor Causes More Injuries to Accident Victim?
Published On: February 27, 2011
The following poignant question was posed on www.avvo.com:
“Our daughter suffered a near fatal accient as a result of which she suffered a Traumatic Brain Injury (TBI). After 28 days the doctors decided to place a feeding tube, which was done by a radiologist. The tube was not placed correctly and the feeding material leaked into her abdominal cavity. After watching her for some 8 days where her abdominal cavity hardened and she came down with 104 fever, the surgical group performed an emergency procedure during which they cut her open and cleaned. The bacterial and fungal infection caused near fatal condition for a week (104 fever). Also they had to insert 2 tubes in the cavities to drain her. Apart from the the near fatal condition which had nothing to do with her TBI, it delayed her recovery and transfer to a rehab center by 18 days, which were valuable towards her initial recovery.”
The question becomes: Who is responsible for injuries she suffered in the hospital?
My response:
Who was at fault for the accident in which your daughter suffered the TBI? If it was someone other than your daughter, then both that person who obviously has nothing directly to do with your daughter’s medical treatment and the radiologist (and hospital as well as other medical personnel) may be liable for her injuries.
The Restatement 2d Torts Section 457 states:
If the actor’s negligence results in harm to another which requires him to submit to hospital treatment, the actor is responsible for injuries resulting from the improper manner in which any member of the staff does his part in the normal treatment of his injuries. He is therefore as fully responsible for the negligent manner in which the nurses or clerical staff perform their part as he is for the negligent manner in which a physician or surgeon treats the case or diagnoses the injuries or performs an operation.
Beware: Statute of Limitations Also, the Statute of Limitations for Medical Malpractice is shorter than that for Personal Injury. Please contact an experienced attorney immediately.
California Civil Jury Instruction 3929 States:
If you decide that [name of defendant] is legally responsible for [name of plaintiff]’s harm, [he/she/it] is also responsible for any additional harm resulting from the acts of others in providing aid that [name of plaintiff]’s injury reasonably required, even if those acts were negligently performed.
Click here to get directions for use of these jury instructions and their sources of authority.
