How do I write a settlement demand to a plastic surgeon? I have consulted attorneys who say they do not want to take the case because I do not have enough injury. I had lower lid surgery. The result was my lids turned inside out and the outer corners were pulled way down. Not normal. But Dr. and entire staff pretended it was normal. Today, the left eyelids do not close and meet as lower lid sags exposing the eyeball. On right side he made incision below the lash line (should have been at lash line) and I have obvious scar. He also removed different amounts of tissue so there is more puffiness under the right eye. My eyes are also two different sizes now. They get red often and sometimes I have pain. I want Dr. to pay for reconstructive surgery by ocular specialist to fix this mess.
Your question is too complex to answer on this q&a board, but here goes. I had a similar case presented to me years ago, but the woman had a functional loss as well (the cosmetic loss was hardly noticeable)-her eye lids did not fully close and she had to put liquid tear drops in her eyes every 20 min for the rest of her life! I had to refer it out because it was a complex case. You can make all the settlement demands you want, but if you have weak damages, or the statute of limitations has run already, or you dont have the money to support the very expensive costs these kinds of cases require, then your settlement demand will fall on deaf ears. The Dr has no real incentive to settle with you absent the pressure of a lawsuit having been filed or about to be filed by an atty, and even then, if he has malpractice insurance, he is covered by ins and doesnt have to pay anyway, so again, why would the Dr want to settle with you. You might say, "to avoid the suit" but if an atty is not behind you, then they probably wont take your letter seriously. If your statute of limitations has not yet run, I suggest you take before pix (just before surgery, not when you were much younger) and after pix of your face/eyes, and speak with an independent plastic surgeon in another area to see if they agree that malpractice occurred and if you have any functional loss; then take your case to another malpractice atty (try Drew Britcher, Glen Rock, NJ and use my name-you have to be willing to travel for the best) and let him review it. I see alot of these cases and many times the potential award doesnt justify the costs of suit. PS the costs include costs for ALL medical records (all past records are obtained, as well as surgery and all subsequent records), expert Dr review of malpractice alleged and writing of opinion in report (case is over here if they dont agree with you as you must have expert support and you may not get that in writing), court filing fees, service of process fees, liability experts are paid by the hour for their depositions (both ptf and def experts are usually deposed), court reporter costs-they get paid by the page and to appear, medical expert report fees and medical expert deposition fees (you cannot present a malpractice case in NJ without a Dr opining there was malpractice and a Dr. opining that your injuries were related to the malpractice and as your prior consulting attys pointed out, if your damages are only worth say $100K or less, the costs, which could get upwards $25K to $50K (sometimes less, sometimes more) just dont justify filing the suit-so the more impressive the damages, the more likely an atty is to take the case)
Try consulting with a few other attorneys - but quite honestly, elective procedures gone bad are generally not as attractive to a med mal attorney. But remember, bad results do not necessarily equate to medical negligence. There are risks inherent in all surgical procedures. If the Dr can argue that making an incision below the lash line is an acceptable and commonly-used methodology that does not rise to the level of medical negligence your claim would be in trouble (I do not know one way or the other).
If you speak to an attorney that agrees with your theory of liability, but is hesitant to represent you because of limited damages....you may want to consider offering to pay or split some of the expenses with the attorney. This is highly unorthodox (I've never done it), but I have heard of other attorneys entering into these kinds of arrangements.
Otherwise, Attorney Houghton gave you good advice.
