Amputation Medical Malpractice (Podcast) May 1, 2024.

Amputation Medical Malpractice (Podcast)

In this podcast, Christopher Mellino explains how medical negligence can lead to unnecessary amputations. He talks about your rights if you are the victim of medical negligence, and he explains what type of evidence is used in these cases as well as options for compensation.

John Maher: Hi, I am John Maher. I'm here today with Christopher Mellino, founding attorney of the Mellino Law Firm, a personal injury law firm in Cleveland, Ohio, with a focus on medical malpractice. Chris has over 40 years of experience in handling medical malpractice cases, has been involved in several landmark cases in Ohio, and has received verdicts against every hospital system in Cleveland. Welcome Chris.

Christopher Mellino: Hi, John. Thanks for having me.

When Malpractice Leads to Amputation

John: Sure. So today, Chris, we're talking about amputation medical malpractice. What are some of the most common scenarios that lead to medical malpractice lawsuits involving amputation?

Christopher: Most amputations are a result of a loss of blood flow to a limb, mostly the leg. Those are the most common amputations. And the way you would have a loss of blood flow is either, one is you're not getting enough blood flow because your heart's not strong enough to pump blood to all your extremities, or you get some kind of blockage in an artery that takes blood to that part of the body. So a lot of people are prone to it because they have heart issues or they have hardening of the arteries.

It's not always just the coronary arteries. You can have that in your legs. That's pretty common. It's called peripheral artery disease. So if you have that, you can get blockages. And if that's not detected soon enough, there's lots of tests that they can use to determine if you have adequate blood flow to your feet and to your lower legs. And if for some reason you have the symptoms and the doctors don't follow up on that or don't do the proper tests, or they misread the tests, that can cause you to go for a period of time with either not enough blood flow or no blood flow and eventually all your tissues in your body need blood to get oxygen.

Without oxygen, your tissues and muscles start to die. So the longer that goes on, that can lead to death of the tissues in that limb and to the point where they would need to amputate the limb, because once it starts dying, it starts causing infection and then can lead to other problems.

John: So this is an issue where, in most scenarios, the doctors are just not catching this properly, they should be testing for this, they should be looking for this type of issue, but they're just not seeing it until it's too late and then you have to have a limb amputated that could have been prevented if they had done their due diligence and figured this out ahead of time. Is that right?

Christopher: Yeah, that's right. Mostly, there's a couple common signs that a person would have decreased blood flow to a limb. Most of the time it would be coldness in that limb, numbness, tingling, but most often it's an infection.

People get infection in their toes and it works its way from the farthest part from the heart through the foot, up the leg. So at any point, doctors should, as I said before, do testing on the person's circulation in their leg. Could be as simple as taking the pulse in the leg to any kind of radiographic images that'll show them blockages. So yeah, the failure to do that kind of testing when a patient's having symptoms, that would be medical negligence.

Wrong Site Surgeries - Amputating the Wrong Limb

John: Okay. So we're not talking about here what might be some people's nightmare scenario, which would be maybe they have to have a limb amputated, but they go into the hospital and the other limb is accidentally amputated or something like that and now they have to have both of their limbs amputated. We're not talking about mistaking the left leg from the right leg or something like that.

Christopher: Well, I mean, that's wrong site surgery. I mean, that does happen.

John: Okay.

Christopher: But I mean, in that case, there is negligence. Normally, if somebody needs to have their limb amputated, it's preventable, unless you get in a car accident and you have some kind of crush injury or something that cuts off blood flow to that limb. But even in those scenarios, you can restore blood flow to the limb if you get it quickly enough. So, yeah, normally if you get to the part where somebody does need an amputation, obviously identifying the right leg or arm that you're going to amputate is critical, but that's a whole nother topic.

Proving Medical Malpractice for Avoidable Amputations

John: Sure. Yeah, absolutely. So in terms of this topic here, for a lay person listening, can you explain what maybe the legal standards are for proving medical malpractice in an amputation case like this that we're talking about?

Christopher: Sure. Well, I mean, the important thing to remember is malpractice isn't really a legal standard.

John: Okay.

Christopher: That's just kind of a common term. In Ohio, the cases are referred to as medical claims under the law. So medical claim is anytime you bring in a case against a doctor, a hospital, a nurse, whatever, any kind of medical provider, claiming that their negligence has caused injury.

So the three things that you need to prove in medical negligence case is first of all, negligence, and negligence is defined in the law as either failing to do what a reasonably careful provider would do in that the same or similar circumstances, or doing something that a reasonably careful provider wouldn't do, would refrain from doing, in those circumstances.

So basically, it's a failure to act as a reasonably careful doctor, nurse, whatever the negligent person, whatever their title is, failing to do what a reasonably careful person would do in those same circumstances. And once you prove that, that's the negligent part, then you have to prove that that negligence caused an injury, that's what's known as proximate cause.

John: Okay.

Christopher: That means if they had done what they were supposed to do, this wouldn't have happened. Basically, that it's preventable. And then the third thing you need to prove is what is the extent of the harms and losses that were caused by the negligence?

Evidence for Building a Medical Malpractice Case

John: And so what type of evidence is typically needed to build a strong case in a medical case like this?

Christopher: There's basically three types of evidence that are used. So one is the medical records. The records document or should document what actually happened or what the caregivers were doing or what they were thinking at the time.

The other thing in a case is radiographic images, if there are any, are particularly important. So you can show a jury through a CT scan where the blockages are, what the doctor should have seen, why was there a loss of blood flow to this particular limb that requires amputation?

All medical malpractice cases need to be proved through expert witnesses, meaning each side has to have doctors that they retain that are supposed to be experts in the field to talk about what should have happened, why the injury was preventable, and what the extent of the harms and losses are as results in the negligence.

John: And how do you go about getting and collecting that evidence? Are there laws that allow you to just see those records from the hospital and things like that in this type of case?

Christopher: Yeah, absolutely. There's a federal law. And I think people know or have heard of HIPAA, which is just the acronym for the name of the statute. And people think of that in terms of, "Well, you can't talk about other people's medical care," but it's actually a lot more than that. And HIPAA, that particular law, which applies across the entire country, requires healthcare providers like hospitals, doctors offices, anybody that, first of all, they're all required to keep medical records anytime they give medical care, provide medical care, and the other thing is they're required to retain the medical records for 10 years.

And any patient is allowed to request the medical records and under the HIPAA law, they're entitled to see the medical records. The providers have to provide the records within 30 days of any request for those medical records. But, yeah, the short answer to your question is every patient's entitled to a copy of their medical records.

Key Challenges in Amputation Cases

John: Okay. And so what are some of the key challenges maybe that plaintiffs might face in these types of amputation cases?

Christopher: Well, as long as we're on the topic of medical records, the key challenge is getting the medical records in the first place. Because despite what I just said about the HIPAA law, healthcare providers are pretty reluctant to turn over medical records. If a patient requests their medical records, they're never going to get the whole set of medical records, which is a reason why you need an experienced lawyer who handles medical malpractice cases because number one, they know what a complete set of records looks like, they know what to ask for. And two, they know when they haven't gotten what they're supposed to get.

John: Right. "Hey, we're missing, we only got a B and C. We're missing X, Y, and Z."

Christopher: Right, exactly. So it requires a lot of follow up and we have people at our firm that that's their job, to request medical records and then follow up once we don't have what we're supposed to get. And then the other biggest thing is going to be that, as I said, most people that are prone to having medical issues that could lead to amputation have some kind of underlying medical issues.

Like people with diabetes tend to have poor circulation in their extremities so they're prone to these types of issues, infections in their feet. Or the person may have some kind of underlying problem with the heart, which causes that blood not to circulate. And so generally the defense will try to use those underlying medical conditions against the person and say, "Okay, well it's not our fault. It's the patient's fault for having these conditions in the first place or not taking care of themselves."

John: Or you should know that if you have diabetes that this is a possibility or you should know if you have a heart problem, that amputation is a possibility and that sort of thing.

Christopher: Right.

John: But in that case, wouldn't the doctors just all that more be watching for something like that?

Christopher: Well, they should be. And I mean, that's the other side of the coin. It's like, "Okay, well, as the doctor you know that. You should be more careful." I mean, all these cases come down to was the injury preventable? Is there a way that if the doctor was being reasonably careful.

John: Sure.

Christopher: Would've discovered the problem and is there treatment available to take care of the problem? And in most situations, the answer to both of those is yes.

Compensation Available in Amputation Lawsuits

John: So in terms of after this has happened, and an amputation has happened, and you go through a medical malpractice case like this, what types of damages can a person typically recover in an amputation lawsuit?

Christopher: Actually, in most cases, well, in all cases, you can't ever make the person whole or bring them back to where they were before the injury happened.

John: Sure.

Christopher: But in amputation cases, we have the best, as lawyers, have the best chance of making that happen because all we can ever do is get a monetary recovery for our client. But in cases involving amputation, there's a lot of medical aids and devices that are available that can help somebody that's had a limb amputated.

For example, there's multiple prostheses that are available that people can use. I think we see it now on TV and on commercials, especially people that run, with leg prosthesis. The problem with those is they're expensive and Medicare and most insurance don't pay for those kinds of prosthesis. They just pay for the basic people always thought of as the wooden leg. They're titanium or something now, but they're…

John: Not the ones that have extra flexibility in them and things like that.

Christopher: There's actually multiple prosthesis that a person could have depending on what activity they're engaging in that are made for that particular activity

John: Sure.

Christopher: So that they can participate in the same things that people without that disability can engage in, do the same kinds of things. So our job as the lawyer is to get in contact with somebody that's familiar with all of the issues that an amputee faces and put together a plan, which is called a life care plan, which would put that person in a position to be able to perform, at least perform their usual activities, maybe not to the same extent they could before because of the disability, but pretty close.

And so in these kinds of cases, you feel pretty good, at least as an attorney, about the fact that you get them a recovery to pay for all of the things they can need medically, and that will ensure them a pretty good quality lifestyle. It's one of those situations where you're actually improving the person's lifestyle and getting it back as close as you possibly can to where they were before the injury.

John: So you want to be able to show that, "Hey, this person went running three times a week before their leg was amputated. We need to get them back to being able to do that. So therefore they're going to need this more expensive prosthetic. And so that we need that to be considered in the damages in order to have enough money to put toward that more expensive prosthetic so that they can get back to that lifestyle that they were used to having."

Christopher: Yeah. Exactly right, yeah.

Contact Mellino Law Firm If You've Faced an Amputation

John: All right, well that's all really great information. Chris, thanks again for speaking with me today.

Christopher: Yeah, no problem. Enjoyed it. Thanks.

John: And for more information, you can visit the Mellino Law Firm website at mellinolaw.com or call (440) 333-3800.