That was I said in the first post that invocation of Res Ipsa Loquitur is more approriate.
Based on what you said, the hospital was certainly at fault not giving you reasonable care during the first visit. To prove fault in malpratice case, however, is rather difficult. You have the burden to prove that the doctor deviated from customary care from his profession. Experts' opinions are very important. If some experts' testify that they would immediately take x-ray and things as such and your doctor did not do that, yes, his conduct deviated from the custom in his profession and there is a breach of duty. If, however, his experts testify that majority of the doctors would give medicine to ease the pain, then there is no case and a directed verdit will be issued for the defendant. That being said, it is extremely hard to prove his fault. If in your town there are 10000 doctors and 5001 doctors would take greater care than he did then you win. If not, then you lose. You got my point, that under the circumstances every doctor has his own ideas and it is hard to have everything smoking out and it is basically impossible to get all the testimoies from all doctors. The defendant could easily find other experts to testify that under the circumstances they would do the same thing, then you lose.
The other thing is that, even you can prove that his conduct deviated from custom, you still need to prove that but for his conduct, you would not have had the surgery. It is equally difficult.
Res Ipsa Loquitur, on the other hand, does not need to prove any fault. You need to raise evidence that the surgery was PROBABLY as a result of negligence and the doctor was PROBABLY the responsible party and you did not contribute to the harm. The second and third elements are non-issue. The question is whether you can prove the first one. You may need to obtain a manual from the hospital to ascertain the normal operating procedures under the circumstances.
The key thing is you are well and that is most important.
Based on what you said, the hospital was certainly at fault not giving you reasonable care during the first visit. To prove fault in malpratice case, however, is rather difficult. You have the burden to prove that the doctor deviated from customary care from his profession. Experts' opinions are very important. If some experts' testify that they would immediately take x-ray and things as such and your doctor did not do that, yes, his conduct deviated from the custom in his profession and there is a breach of duty. If, however, his experts testify that majority of the doctors would give medicine to ease the pain, then there is no case and a directed verdit will be issued for the defendant. That being said, it is extremely hard to prove his fault. If in your town there are 10000 doctors and 5001 doctors would take greater care than he did then you win. If not, then you lose. You got my point, that under the circumstances every doctor has his own ideas and it is hard to have everything smoking out and it is basically impossible to get all the testimoies from all doctors. The defendant could easily find other experts to testify that under the circumstances they would do the same thing, then you lose.
The other thing is that, even you can prove that his conduct deviated from custom, you still need to prove that but for his conduct, you would not have had the surgery. It is equally difficult.
Res Ipsa Loquitur, on the other hand, does not need to prove any fault. You need to raise evidence that the surgery was PROBABLY as a result of negligence and the doctor was PROBABLY the responsible party and you did not contribute to the harm. The second and third elements are non-issue. The question is whether you can prove the first one. You may need to obtain a manual from the hospital to ascertain the normal operating procedures under the circumstances.
The key thing is you are well and that is most important.
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