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» LymeNet Flash » Questions and Discussion » General Support » Considering filing suit..... child

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Author Topic: Considering filing suit..... child
s0ngbird1962
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My son was misdiagnosed when he was 4, despite all classic symptoms. 8 months later he was correctly diagnosed when he couldn't walk. Like many of you, he has endured many tests etc., he is now under the care of a LLMD when he started losing his vision.

Long story short... Although his vision is better, he still has occasional issues. My biggest concern at this point is his difficulty in school. He's now in 2nd grade (7 yrs old) and still can't read well. He also has issues with math.

Teachers report that he has issues with focus/attention. I totally believe this is an effect of his lyme. He's been tested several times & currently receives support in reading/math.

Husband has been wanting to sue the pedi who misdiagnosed. I've told him not to, to just concentrate on getting our son well.

Well, it's becoming apparent that real damage has happened to our son, one that may be long lasting. So we are considering that option again.

Anyone go that route? Anyone know of anyone who has sued for negligence and won?

--------------------
Mom to a 5 year old lymie....
Taking it one day at a time.

Posts: 182 | From Ipswich, MA | Registered: Jul 2008  |  IP: Logged | Report this post to a Moderator
kidsgotlyme
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It sure would take a lot of time and energy.

Do you think you can do that and take care of a sick child??

I wouldn't do it unless I could put my whole heart into it, because it will take a real fight, I'm sure.

Just things to think about [Smile]

--------------------
symptoms since 1993 that I can remember. 9/2018 diagnosed with Borellia, Babesia Duncani, and Bartonella Hensalae thru DNA Connections.

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Lymetoo
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You're up against the IDSA guidelines.

Someone HAS won by doing this. I remember a case posted here on Lymenet about 6 yrs ago.

It was a long battle. I wish you luck if you decide to do it!!!

--------------------
--Lymetutu--
Opinions, not medical advice!

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lymers
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I wish you ALL the luck in the world if you decide to take on this fight.

I think it will be a VERY difficult fight if you do decide to pursue this.

Lymers

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trishee
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Check out Lymediseaseassocition.org website for help paying for treatment of children with Lyme.
I hope things will get better for him with good treatment. So many do get improvement when they thought it couldn't happen.
Blessings,
Trish
"ribbons across america"

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sixgoofykids
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My daughter with Lyme had a hard time in school. As she got better, it improved. She improved by leaps and bounds when we chelated lead, she was very toxic in it.

I wish you luck with whatever you decide.

--------------------
sixgoofykids.blogspot.com

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s0ngbird1962
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I understand about going up against the IDSA guidelines. Putting that aside about how they agree (or disagree) how lyme should be treated.... my son was misdiagnosed when he had all the classic signs, flu sx, bulls eye rash. Plus we live in an endemic area KNOWN for lyme.

I have no doubt the Dr. was negligent in not diagnosing our son when we first brought him. And because of that negligence, he has suffered damage.

We have put off pursuing this because of the many things you have all mentioned here. Considering again.... need to make up our mind soon.

--------------------
Mom to a 5 year old lymie....
Taking it one day at a time.

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carly
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Do it.

Doctors have malprctice insurance so that they can avoid spending too much of their time and energy fighting a lawsuit.

It's easier for them to pay up. The point for you is that you will get some monetary compensation to help with medical bills, future tutoring expenses that may arise, etc.

At the very least, consulting a lwayer will tell you if you have a "win-able" case.

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sutherngrl
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I think if enough ppl stood up against all the doctors that are ignoring LD, misdiagnosing us and causing "harm" to us, that maybe eventually somewhere down the road things might change.

I say go for it. That is if you have the money and the momentum it is going to take to pursue it.

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Carol in PA
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All good points above.

Physicians may be unwilling to testify against other physicians.
It will take time and effort, and loss of income on their part.

You are likely to have problems getting care from physicians once this is known.
Doctors will be leary of treating you if they think you are "sue happy."

Carol

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NYStateDad
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We are considering a lawsuit, PM's welcome.

Tick bite Fall 2009, visited pediatrician, no lyme test ordered

Returned week later with swollen gland at site of bite, told it was not lyme.

Returned 5 months later for headaches, joint pain and fatigue. High ANA. Finally tested for lyme - (ELISA) negative

Clear neurological involvement by Oct 2010. High ANA, tested by Western Blot by another doc in practice - Positive on 2/3 IgM bands (CDC positive)

Now under care of LLMD

This is not the 'anger phase' of grief, it is a mechanism to recover expenses that should have been avoided, and to compensate for the pain and suffering of our child, possibly over a lifetime.

--------------------
Father and Husband, fighting for both his son and his wife.

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steve1906
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Here's the lyme suit from (1999)

Jury awards $1.7 million to Cecil teen
By Carl Hamilton, Whig Staff Writer (Maryland, USA)

ELKTON - A civil jury awarded more than $1.7 million Monday to a Port Deposit teen who suffers long-term health problems because local physicians failed to diagnose his Lyme disease. This is believed to be the highest award of damages in Cecil County history, according to veteran lawyers and court officials.

The six-member jury deliberated nearly eight hours before concluding that Chesapeake Family Practice Group on High Street in Elkton breached the standard of medical care when treating Aaron Murray. That breach, according to the jury, directly resulted in Murray's physical problems, including his IQ reportedly dropping as much as 29 points.

Murray was 14 when he became a patient at Chesapeake Family Practice Group in 1995. He is now 18. The jury also decided that Dr. Joseph K. Weidner Jr. breached the standard of care. However, his breach didn't directly lead to Murray's physical problems. Weidner still practices medicine at Chesapeake Family Practice Group. In addition, the jury exonerated the remaining defendant, Dr. Leila A. Kirdani, concluding that she didn't breach the standard of care. Kirdani now practices medicine in Buffalo, N.Y. The jury originally awarded a total of $3.2 million, but Circuit Court Judge O. Robert Lidums reduced damages on one count because it exceeded a state cap. Under a count addressing the plaintiffs' pain and suffering, the jury wanted to award Murray and his mother, Gail Johnson, 41, $2 million. The cap is $515,000, however. It awarded more than $1.2 million to cover Murray's loss of future earnings. And the jury awarded $64,000 to cover past medical expenses. The defendants' attorney, Robert C. Morgan of Baltimore County, could not be reached Tuesday for comment.

Ira C. Cooke of Towson, Md., who represented the plaintiffs, believes this verdict will caution other doctors. "I think this is an important case because it puts the medical profession on notice that anything less than top-flight medical care will not be tolerated in Cecil County,'' Cooke said. Cooke handled this case with Elkton-based lawyer Douglas R. Cain. In October, Cain represented a local plaintiff who was awarded more than $1.6 million in damages. Until this verdict, that was the highest amount of damages awarded in this county. The jury in this most recent case returned its verdict after a two-week trial.

Chesapeake Family Practice Group failed to offer its physicians training or directives relating to the prevention and detection of Lyme disease, the plaintiffs maintained. Cecil County is a high-risk area for the disease. According to the lawsuit, Johnson and her son sought medical attention at Chesapeake Family Practice Group on April 1, 1996 because the teen exhibited numerous symptoms indicative of Lyme disease.

The teen had "every single'' symptom, including fatigue, a rash, swollen glands, nausea, flu-like symptoms and aches and pains in the joints, Cooke charged. But Murray's condition went undiagnosed despite several more visits to the medical practice, Cooke said. The defendants didn't even conduct the simplest of diagnostic tests - a blood test, he added. Staff doctors diagnosed Lyme disease after Murray collapsed with seizures in a hospital emergency room in August 1996.

Hospital doctors relied on blood test results. The defendants countered, however, that Murray had Lyme disease only a few weeks before collapsing at the hospital - not several months before the incident. Approximately six weeks before the episode, the teen discovered a rash that could have been a telltale of Lyme disease, according to Morgan. Yet, Murray and his mother didn't seek medical attention at Chesapeake Family Practice Group between the time of his rash discovery and his collapse, Morgan maintained. The plaintiffs contended that there was an unnecessary delay in treatment and that it caused Murray's IQ to drop significantly.

His IQ was measured at 115 in 1995, they reported. Two recent tests registered Murray's IQ at 86, and a third placed it at 103, according to testimony.

His lawyers claimed Murray was unable to complete the ninth grade as a result. Last week, Murray provided emotional testimony about the various abilities he has lost in the wake of his prolonged bout with Lyme disease. If detected early enough, according to his attorneys, Lyme disease can be easily treated without lingering health problems.

The teen broke down on the witness stand, reducing jurors, the judge, his lawyers and others in the courtroom to tears. During his closing statement last Friday, Cain reminded jurors that Johnson made 72 unanswered phone calls to Chesapeake Family Practice Group in several months.

She was concerned about her son's worsening condition, Cain said. Weidner called Johnson a "hysterical mom'' while talking with the woman about her son's case, the mother testified. Morgan didn't dispute that Murray visited the medical practice numerous times since January 1995, when his family became clients.

He also didn't deny that numerous phone calls were made on Murray's behalf. But many of those phone calls and visits related exclusively to the teen's asthma and other ailments, such as sinus infections and stomach problems, Morgan said. Morgan called the plaintiffs' case a "fishing expedition,'' and he accused their lawyers of preying on the emotions of jurors.

"Clearly, the medical care rendered in this case met the standard of care,'' Morgan said in his opening statement.

--------------------
Everything I say is just my opinion!

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steve1906
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Here'e another law suit>

http://www.mdjunction.com/forums/lyme-disease-support-forums/general-support/1894126-australia-lyme-lawsuit-on-karl-mcmanus-lyme-death

--------------------
Everything I say is just my opinion!

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seibertneurolyme
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Do you have copies of office notes and all test results from all appointments? If not, then you don't stand a chance. It would all depend on what is in the office notes. If there is no mention of a tickbite or rash etc then you do not have a case because it is simply your word against the docs. A picture of the bite would also help but probably does not exist.

Good luck, but I think this will be a very difficult case because the Western Blot was done so long after the tick bite. They can always say he was bitten again and you can't prove he was not.

If there were any visits to any other docs besides the pedi and the LLMD then you would also need to get copies of all those medical records as well. The more appointments he had then that is more documentation that there is a pattern and progression to the illness.

Bea Seibert

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lou
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Steve, the patient never collected on that win. The practice declared bankruptcy and went out of business. So, it was a hollow victory.
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paulieinct
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I say go for it. These arrogant docs have to be held accountable. Even CDC says (in fine print and you have to look for it) that a negative test should not be used to exclude Lyme as a diagnosis when the clinical presentation says Lyme. And to fail to even consider testing when the symptoms are classic Lyme is criminal in my book.

If you can get a lawyer to take the case, they will likely do it on a contingency basis, so it won't cost you anything.

You may or may not prevail. But if more of us who were misdiagnosed filed lawsuits, doctors would eventually be less likely to be so dismissive of this devastating disease.

--------------------
Sick since at least age 6, now 67. Decades of misdiagnosis. Numerous arthritic, neuro, psych, vision, cardiac symptoms. Been treating for 7 years, incl 8 mos on IV. Bart was missed so now treating that.

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Camp Other
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"Ira C. Cooke of Towson, Md., who represented the plaintiffs, believes this verdict will caution other doctors. "I think this is an important case because it puts the medical profession on notice that anything less than top-flight medical care will not be tolerated in Cecil County,'' Cooke said. Cooke handled this case with Elkton-based lawyer Douglas R. Cain."

Anybody know if these guys are still practicing law?

Maybe we should hire them...

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AlanaSuzanne
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As a parent of sick children I understand the frustration of misdiagnosis and the desire to initiate a lawsuit.

However, I would advise that you not pursue that avenue.

If I am correct your son was diagnosed after **just** 8 months. I don't mean to sound cavalier, but obtaining a correct diagnosis that *quickly* is a gift. Many/most of our children here went undiagnosed for years.

Your initial instinct of just trying to get your son well is spot-on. The amount of money you'd spend in a lawsuit against your pediatrician (who likely was an "innocent bystander" following IDSA guidelines) would be best served in paying for further evaluating and treating your son.

Many/most kids dx'ed with LD/cos have difficulty in school (how could they not?) There is an abundance of literature re: children/cognitive issues/LD. If you need links, let me know.

Your money would be much better spent on having a neuropsych eval done on your son. This would give you and your SD a lot of insight into your son's needs.

If you have a supportive SD, thank your lucky stars. Many/most parents of kids with TBD do not.

Focus your attention and your money on getting your son healthy and providing him with the services he needs to succeed academically.

As much as I appreciate and understand the points that others have made in response to your post, I disagree with many of them, but not on principle. On that I agree.

But until things change IMO there is no reason to spend your hard-earned money on a lawsuit vs. spending your hard-earned money on treatment/evaluations for your son.

--------------------
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, 'I lived through this horror. I can take the next thing that comes along.'

---Eleanor Roosevelt

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steve1906
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I agree with AlanaSuzanne!

Remember, we all had/have the run around with doctors but, in the end, they are just following the guidelines.

I would hate to see you lose hundreds of thousands of dollars; the odds are they'll win.

I wish you luck in any decision you make, and I hope you son is doing well!

--------------------
Everything I say is just my opinion!

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deerose
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My question is:

can you afford to put the focus, time and energy on that lawsuit and money (and believe me it will take a job and half on top of life-even if you have a "strong case" legally)

at the cost of the energy, time and resources of your family towards the ongoing needs of your son?

For years.

Count the cost very carefully to achieve recompense...if you even win.

which in the current cimate seems unlikely despite a few.

if this were only about justice, to the exclusion of all other factors...then its a different story.

but it seems not.

--------------------
Not everything in life that can be counted counts and not every thing that counts can be counted...Albert Einstein

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Beagle
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I say go for it! I wish everyone that were not diagnosed or treated properly would do it. The only way to get this country to realize how the CDC, IRSA & the rest has caused millions of ruined lives and deaths.

I'm just at the beginning of real treatment, I am totally dibilitated - before Late stage Lyme, I was active 24/7 gave my life to build dog care business and now it's down the tubes because no one even told me I was diagnosed with Lyme years ago. got 2 wks of augmentum which I thought was for sinis infection in 2005! I PROMISE IF I DON'T GET WELL WITHIN A YEAR, I WILL NOT HESITATE TO SUE THE PRACTICE IN BOSTON AREA THAT HAVE DONE THIS TO ME.
And if everyone did this, believe me we'd finally get the mainstream medical institutions to take this disease as serious as they do Cancer.
Beagle

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AlanaSuzanne
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beagle, on principle you are right. And I am sure that many/most agree with you on your points.

But as someone whose family has been going through treatment for awhile now, our out of pocket expenses just for one year were $40K. That's an awful lot of money--enough for a car, a down payment on a house.

IMO, until the tide changes by having the science shoved in front of the faces of the powers-that-be over and over, very few of us can win a lawsuit, much less afford one. Attorney fees can be hundreds of dollars an hour.

I think anyone would be hard-pressed to find an attorney who would take a case like this, unless he or she understood the history, the issues, the science, the controversy. Attorneys are in it to win it. They will not take cases where the odds are they will lose--unless they have a very personal stake in the case and can afford to lose.

--------------------
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, 'I lived through this horror. I can take the next thing that comes along.'

---Eleanor Roosevelt

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ktkdommer
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I looked into a suit against our family doctor who failed to diagnose 3 of us. Boy would I like someone to pay for that. When I contacted a lawyer, I would have to pay up front and in the case of Lyme it wouldn't be negligence that we were trying to prove but we would have to prove intent to harm. That is a tough one. I won't even begin to tell our sad, sad story and who knows when it will be over.

--------------------
Things are never dull. After 3 fighting Lyme, 2 are in remission. Youngest is still sick, age 22. He has new diagnosed Chiari Malformation and Ehlers Danlos Syndrome.

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AlanaSuzanne
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Good point Kari---"intent to harm" would be nearly impossible to prove in today's climate.

Like I said earlier, the doctors we turn to first--our pcps and pediatricians--are "innocent bystanders" following IDSA guidelines.

From firsthand experience, I cannot say that they were negligent or had any intent to harm whatsoever. They just were not aware of the controversy, or the extent of it.

And many people would be quick to say "well why weren't they?" And rightfully so.

But when you consider that pcps are dealing with everything from acne to heart disease to pneumonia to venereal disease and pediatricians are dealing with everything from breastfeeding to teething to puberty to vaccines, at what point could they realistically focus on infectious diseases like Lyme? They are left depending on the "expertise" of infectious disease doctors.

The only thing we can do as patients is have discussions with our physicians about TBD, pass along literature and keep an open dialogue.

I am so sorry to hear about your family's sad story. So many here can relate. I hope things turn around for you.

Maybe you should post about it in general support. Who knows maybe someone could offer advice or support.

--------------------
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, 'I lived through this horror. I can take the next thing that comes along.'

---Eleanor Roosevelt

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AlanaSuzanne
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Steve, yes, I would hate to see them lose so much money in legal fees when the odds are against them.

Deerose, very good points about resources. And yes, if it were only about justice it surely would be a different story.

--------------------
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, 'I lived through this horror. I can take the next thing that comes along.'

---Eleanor Roosevelt

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AlanaSuzanne
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songbird, what are your thoughts after reading everyone's input?

--------------------
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, 'I lived through this horror. I can take the next thing that comes along.'

---Eleanor Roosevelt

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NYStateDad
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Thank you all for the replies and advice... this situation has gotten much worse.

Yesterday my wife tested positive IgM band 23. I pursuaded her to get a western after three years and probably $20k in medical tests. Every test known to science - MRIs / CTs / UpperLower GI / Heart Cath / ten (at least) trips to the Emergency room / three ambulance rides - mostly for cardiac symptoms. It has been living hell for her and the family already.

She even had an ELISA screen a year after symptoms started - LYME DISEASE AB W/RX = 0.74 with a negative range 0.00-0.90

Literally at least 25 doctors / specialists / ER visits saw her and I HAD TO ORDER THE WESTERN BLOT????? And many of the docs had asked about LD and the answere was 'she was tested for that'. NOBODY asked HOW she was tested. Even a well known clinic in Boston did not find it. We were considering another clinic in NY - until yesterday.

This is a class action lawsuit if i ever saw one, and we will be talking to a local firm as well - even if just to recoup expenses to treat this disease for... what? the rest of our lives?

For something that could have been disgnosed and likely cured if caught early.

For my son, we have the all the records of his sick visits
- tick bite neck
- swollowen gland same location week later
- headaches a few months later to the point where they ran an MRI, fatigue and joint pain documented
- ELISA finally ran 5 months after the bite, of course it was negative
- finally got the WB IgM 23/41 about 15 months after the bite

Yes it could be worse, but it also could be a hell of a lot better.

--------------------
Father and Husband, fighting for both his son and his wife.

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AlanaSuzanne
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Well, best of luck to you NYdad. No doubt we'll all be pulling for you if you decide to pursue this. I sure do hope you win. That would be a very sweet victory indeed.

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You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, 'I lived through this horror. I can take the next thing that comes along.'

---Eleanor Roosevelt

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NYStateDad
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quote:
Originally posted by lou:
Steve, the patient never collected on that win. The practice declared bankruptcy and went out of business. So, it was a hollow victory.

A hollow victory... that establishes case law for the rest of us. Additional suits raise visibility on a big issue - the need for agressive diagnosis and treatment on early symptoms.

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Father and Husband, fighting for both his son and his wife.

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fatherguido
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I have already researched this path with one of my friends who is a good lawyer. Unless you can prove gross negligence such as intent to harm, you have little grounds. In the rare instance you win, lawyers will scoop up most of the settlement. I am not trying to be a wet blanket but it unfortunately is our system.
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nefferdun
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I think every single one of us was misdiagnosed. It is infuriating and depressing that they can "get away with it".

If you have the means to pursue it, then go for it. You should contact the best attorneys for advice; not just the run of the mill guy that needs to make his mortgage payment.

I bought a volume of books at Amazon.com called "Best Lawyers in America edition 2005"

Used it was about $35. The new edition for the year I bought it would have been $900. It is published for attorneys listing the names of those recognized as being the best in their field - by other attorneys. They always win. They are formidable so if you can get one on your side, chances are you can settle out of court.

The first appointment should be free and you will get really good advice about your chances of succeeding and expected costs.

After that, these attorneys are expensive but well worth the money. Usually they have a legal assistant do much of the research etc for much less per hour and they just read things over and go to court.

If they refuse to have "time" for you, you know it is not a winning battle.

What they may tell you is that it will cost you more than you can get out of it. And if you lose there is a strong possibility that the opposing side will ask for attorneys fees which will double your losses.

When you get into law, you find out it is not always about right versus wrong. It is about precedence: court cases settled before your case that favors your argument.

Even if your case is won, if there is no record of any other case to support the verdict it can be appealed to your state supreme court. That is why no one wants to go there. You would have to be very rich.

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old joke: idiopathic means the patient is pathological and the the doctor is an idiot

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chiquita incognita
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I am very interested in health and read almost every day (the past 7 years) about holistic health, physiology ,etc.

The more I have read, the more I have come to realize how *easy* it would be for a doctor to misdiagnose.

So many symptoms can all mimic different diseases or disorders.

How can one think of everything? We all have brain blanks.

How can anyone know it all? They can't. It's just that simple

I would suggest be kind and forgive. The doctor may have been thinking it was something else which mimics lyme, and vice versa. ANd that would just be all too easy to do.

A friend did a lawsuit about another unrelated matter and said it was so costly and above all, so emotionally stressful that they would never do it again. Further, they didn't want to be of help to someone else (a friend) filing a suit because of the reminders of all the stress.

Be well and happy . Forgive. People make mistakes, even doctors.

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migs
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I can imagine your anger but don't get on this until you are sure you have the time, money, and headspace for it. It seems easy but is very hard to fight city hall...which is essentially what you'll be trying to do. Doctors are very protected unless it is grossly negligent, which will be very hard to prove, considering the ball hasn't dropped yet for Lyme Disease.

Save your energy and money for your son I say and worry about revenge when he is old enough to know and tell you how he is feeling and articulate his symptoms and progress.

Your son's learning difficulties are NOT permanent. Keep treating him with safe doses of safe antibiotics until he is 100%. If your LLMD runs out of patience, get a new one. Same old story but I know a man who was very ill with severe heart and brain symptoms and thought he was a goner. He ended up doing the Sam D kind of thing and just stayed on mild doses of antiboitics and probiotics for 8 years and now the guy is sharp as a tack. Went without an LLMD for most of those years. Improvement is not the end of treatment. Get to 100%.

Your son will be fine thanks to your diligence.

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NYStateDad
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thanks migs... have time to decide since as a minor, the 2 1/2 year statute of limitations starts at 18 yo, so there is no rush. Yes, I have enough to do already.

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Father and Husband, fighting for both his son and his wife.

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momindeep
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I agree, you might have to let it go. I too, talked to lawyers about the same thing that happened to my daughter...what a mess.

Although they thought I had a case, not only did we have to prove the intent to harm, but my daughter would have to testify and she was in no condition to do so. On top of that, try and get ANY doctor to go to bat for you, it would not be probable that one would do so...being as they stick together understandably.

I knew what I knew...the medical system failed my daughter miserably, but to prove that would of been more than we could endure.

I, too, have had to forgive to have some peace about it all and that in itself has been healing for my soul...I will never agree with what happened, but it is what it is.

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NYStateDad
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One firm declined already - based on standard of care being followed - no rash, no lyme, no case. Funny, the lawyer who was considering it actually had LD after I warned her to get a Western Blot if she ever got bit. And I found ANOTHER lawyer that had LD as well, who is still considering the situation.

Amazing how many people have had LD when you start asking - it is EVERYWHERE - yet still not being diagnosed.

The other issue is that my son is doing well by most definitions - still good grades, active, happy being a kid. So bottom line, 'damages' would not be high (thank God) and small settlements are not of any legal interest.

And with docs following the 'standard of care' - which is in fact CDC surveillance guidance (NOT diagnosis) this will likely stop here.

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Father and Husband, fighting for both his son and his wife.

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