Pending Medical Lawsuit Question while/post Chapter 7!

[newbeginning]

Greetings,

I have a new question that I have been wondering about. There is a good chance that we will be filing a lawsuit vs. the OB that missed my wife's breast cancer (actually ignored it as something "to not worry about" and thus did not mammogram, etc.) that has now metastisized.

If there is a good chance of some monetary award from this, should we wait until AFTER discharge from chapter 7 or is it okay to begin proceedings during chapter 7 process?

Thank you.

[rrockinggramma]

being involved in a lawsuit before filing your chapter 7 will absolutely tie up your chapter 7 for a long long time. The trustee will salivate thinking of getting his hands on your settlement. IMO, I would file chapter 7, then wait at least a year or so, and then file the lawsuilt. Hopefully your wife is doing better.

[keepmine]

2 problems with waiting.
First of all, the SOL on a malpratice suit may have expired.
Secondly, if you had grounds for filing a lawsuit prior to filing a Chapter 7, that lawsuit is part of the bk aof opposition research in something like this is a lexis/nexus search or a pacer search to see about any bk filings. The other side will report it to the trustee.

[newbeginning]

I apologize, keepmine, but what is aof? I understand the first point, but not the second.

Thank you.

[keepmine]

I apologize, keepmine, but what is aof? I understand the first point, but not the second.

Thank you.

Sorry, a typo.

Meant to say it's part of the bk estate.

[newbeginning]

Crazy. So, if anything comes of this lawsuit, even after the bk, any awards can still be taken by creditors? So, there's the possibility that I may spend thousands on bk, be discharged, and still have to pay back what has been discharged?

Anyway, lawsuit is possible. We're only now really "talking" about it. We are not certain is there are any legal grounds for a medical lawsuit. In fact, we haven't begun anything legally to begin the process of investigating if any wrong-doing, negligence was involved.

[Flamingo]

Greetings,

I have a new question that I have been wondering about. There is a good chance that we will be filing a lawsuit vs. the OB that missed my wife's breast cancer (actually ignored it as something "to not worry about" and thus did not mammogram, etc.) that has now metastisized.

If there is a good chance of some monetary award from this, should we wait until AFTER discharge from chapter 7 or is it okay to begin proceedings during chapter 7 process?

Thank you.

You have an excellent chance of recovery on this matter if what you state is exactly correct and can be proven and I would seek an attorney handling similar matters successfully. Depending upon when this occurred, there is a Statute of Limitations as to your time to file as to medical malpractice. I would sit down with a good BK attorney quickly on this one and lay out the whole situation so you get the best advice as to what you should do.

[danaf]

you might be able to find a lawyer to take your case on contingency.

[lrprn]

There is a good chance that we will be filing a lawsuit vs. the OB that missed my wife's breast cancer (actually ignored it as something "to not worry about" and thus did not mammogram, etc.) that has now metastisized.

First, I'm so sorry to hear about your wife's condition and that it was badly misdiagonosed by her physician.

Because she most definitely suffered obvious harm as a result of the missed diagnosis, a medical malpractice attorney will very likely be interested in her case.

Most malpractice attorneys work on contingency so money to retain their services may not be necessary. However, there's a absolute time limit to file the case - exactly how long depends on the state you live in. The time frame is typically between 1 and 4 years from the time the harm occurred.

Malpractice cases cost a great deal of money to prepare and they move slowly through the courts. If a lawyer thinks your wife's case has merit, the first thing he/she will do is have the case independently evaluated by an expert. This can cost quite a bit - one of the reasons malpractice cases are so hard to get started.

I suggest posting your wife's situation in the Medical Malpractice forum at http://www.lawyers.com. You need to join to post but it's free like it is here. There are several very malpractice-knowledgeable folks hanging out there (including several malpractice lawyers). You'll learn a great deal about how worthy your wife's case may be and how likely it will entice a malpractice attorney to pick up the case on contingency.

Even then, realize that an actual award will likely be many months, even years, away. Your Ch 7 will be long gone before you ever see any money even if your wife does win the case.

As far as when to file, since no malpractice case was filed before your Ch 7 case was filed, it is not a part of your bankruptcy estate on the day of filing and your trustee should not be able to touch any proceeds no matter when you file the malpractice case. If you want to be absolutely 100% safe, file the malpractice case after your Ch 7 case is closed. I'm fairly certain that this won't be a problem since it takes a while to prepare a malpractice case for filing anyway.

You need to consult with a local malpractice attorney quickly to find out what the time limit is in your state to file your wife's case. That's the deadline you don't want to miss!

I will be praying for your wife and your family. Again, I'm so sorry you are having to face both Ch 7 and your wife's serious illness at the same time. Know that we care about you and want to help you any way we can.

[newbeginning]

Thank you all for your advice!

My wife (and daughter!) and returning home this Friday! My wife will resume chemo in an out-patient status.

My wife's family is inquiring as to whether we will file suit against my wife's former OBGYN for missing the tumor back in spring of 2007. Seriously not certain if we have a clear-cut case and medical malpractice lawsuits are difficult and expensive as it has been stated. But more importantly, salivating about the idea of ruining someone else's life does not sit well with me. He has been in private practice for less than 5-years, has a family, and was sincerely distraught (not nervously, but saddened) when he heard that my wife had cancer. I don't blame him for the cancer; He didn't put it there and though his diagnosis would have helped tremendously, it's clear to me that the cancer was already there and likely spreading. I will actually speak with the primary oncologist about how he feels the cancer may have spread from that "non" diagnosis to the point of actual diagnosis.

I actually harbor little or no blame towards him. My wife is also not eager to discuss/decide on the course of a lawsuit. We consider ourselves to be practicing as opposed to church-going Christians. The idea of forgiveness is strong in us (unlike my wife's family- akin to jackals hovering over a lame springbok and have been scarcely supportive to me and my son throughout this whole thing).

We've come a long way and the idea of injecting more negative things into our lives is not comforting. Not to mention that I will need to file BK soon and this would make matters more complicated.

Just venting...thanks for listening.

[CindyLou]

The fact that you have forgiven your physician is very good. But you know, sometimes medical malpractice suits are not about revenge, but they are about getting reimbursed for the damages caused by the mistake.

Now, I am in the medical profession myself and I am very against frivilous malpractice suits. BUT if the doctor truly did use bad judgement and this caused further damage and expense to your wife, then at the least he should compensate you for your monitary damages. You can choose to only sue to actual damaged.

I would have a reputal attorney look at the case and also talk to your oncologist and then make your decision. If you then feel his care made a difference in her outcome you should move forward. That's just my opinion.

[HHM]

Also, many states have exemptions that can cover part, and sometimes all of the recovery.

Malpractice suits have strict (and often short) statute of limitations, so you need to see a lawyer yesterday.

Regarding the BK, if the event that gave rise to the law suit occured before you filed BK, then the lawsuit is part of the BK estate. So, if the exam where the OB missed the breast cancer occured before you filed BK, this action would be subject to the BK estate.

[Flamingo]

What is important here is whether or not the cancer was actually present at the initial exam. Most prudent doctors would have had her obtain a mammogram, ultrasound or MRI and the majority do just to protect themselves against a lawsuit. Even mammograms sometimes do not pick up early cancers. On the other side, there might be argument that if your wife had her doubts about the diagnosis, that she should have been prudent and responsible and obtained a second opinion. Also, if the doctor has no prior malpractice suits or charges against him on his record, that can work in his favor and any award be reduced. And as explained by HHM, many states have caps on medical malpractice awards. It would be best to sit and hash all this out with a good medical malpractice attorney before making any decisions. Educate yourself as to the process and the time limits involved and also how long it could take to come to fuitation. Some lawsuits take several years to resolve and there will be a litany of expert witnesses that will need to testify for both sides. Call your State Bar Assoc. for a reference to a good Medical Malpractice attorney in your state. Make an appointment - it will be well worth your time.

[newbeginning]

Thank you. I will look into discussing this with an attorney. My brother in law is a junior partner in a very prominent law-firm, but don't like the idea of having relatives involved in personal affairs. Especially those that have been grossy unsupportive throughout this ordeal.

I will need to get a more precise account of what happened from my wife. It is only now that she is lucid enough to help hash-out what the OB did and did not do. As per getting a second opinion, it is also reasonable to argue that we rely on the expertise of physicians to help us make decisions that we know little or nothing about. It is reasonable for someone to take the word of the physician and leave it at that. The unfortunate thing is that I do not recall or my wife did not tell me of this until she was diagnosed.

1. I will need to spend what I have in my bank accounts prior to bk. Is setting aside money for attorney legit? I can't imagine why not?
2. There is a church that is doing a fund-raiser for our family. I have told them about the pending bk and asked for them to wait after I have filed. What is the best way to handle this? This money will not come close to paying off CC AND medical debts to date. But will help us pay for future bills considering my wife may not be returning to work for some indefinite time (metastatic breast cancer).

Thank you.

[danaf]

If I were you, I'd get all the facts down and then look for an attorney on contingency. I wouldn't use family. You may have to tell your story to a ton of lawyers but if you have a valid claim, I'd bet you'd find one that would take your case on contingency if that is the way you'd like to go.