Q: Can a Work Comp patient file a separate Medical Malpractice claim against the WC doctor who caused a secondary injury?
The WC doctor ordered an EMG/NCS test (#1) in September, 2020 with an abnormal study indicating minimal nerve damage at my L5 nerve root which suggested a possible recovery time of 8 weeks from a slip & fall injury.
WC doctor ordered PT in October 2020 where I was placed on a Lumbar Traction table for 15 minutes causing trama at my L5 nerve root causing my myelin sheath to de-glove from my sciatic nerve rendering permanent nerve damage.
Followed up with WC doctor in November 2020 where HE indicates on his medical notes that I have suffered a secondary injury due to the lumbar traction table.
WC doctor reorders another EMG/NCS test (#2) in January 2021 with an abnormal study indicating nerve damage has worsened from September 2020 study.
I decided to pay out of pocket for another EMG/NCS test (#3) in October 2022 for a comparison with an abnormal study indicating no change from (#2) study.
My ability to function has been negatively impacted for life.
A:
Yes, an injured worker can file a separate medical malpractice claim when the doctor is not an employee of the same company. While often referred to as “WC” doctors, they usually are not employed by the company where the worker was injured or the workers’ compensation carrier.
Based on the facts you presented, your permanent damages arising from treatment for your work injury become part of the responsibility of the workers’ compensation carrier. Given the complexity of your situation, I recommend that you consult with a board-certified workers compensation specialist to look at the specific facts in your claim. They should be able to refer you to a medical malpractice attorney and work together for the best result for you.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
