Nerve Cut During Operation

[SFCMoore]

In 2007 I had a TKR. In 2009 I had a revision of the knee replacement. As luck – or un-luck- would have it a nerve was cut below the kneecap. It went unnoticed and now 11 months later and several doctor visits it is verified that the nerve is cut. The chances of repair are slim and I have a upcoming appointment to see what is next. The nerve, when pressed, tells the leg to give out and it is very painful and to say the least upsetting. I am 90% s/c and with the knee operation I am 100% temp until August. I will revert back to 90%. The question is should this be secondary to the knee or a individual claim. I did some looking and came up with this “Under 38 C.F.R. § 4.124a, Code 8521, disability ratings of 10 percent, 20 percent and 30 percent are assigned for incomplete paralysis of the external popliteal nerve (common peroneal) which is mild, moderate or severe in degree,respectively. A 40 percent rating is warranted for complete paralysis.” Does this sound right? If not what would someone out there recommend? The knee is no good when weight is applied though without weight bearing I have total motion. The CFR states that "The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2009)". Can this somehow be increased to 60%?

[john999]

You might try and talk to malpractice lawyer to see if you have a case. Do it soon since you have two years I think.

Sue the doctor who cut your nerve if you can. I am sure it won't be easy. I tried suing the idiot doctor whose procedure ended with me have horrible staff infection. Nobody would take the case since they did not have to cut off my foot. When you sign to give doctor permission to operate you usually sign that you know the risks and accept them. Of course, no one really knows the risks. That is where the lawyer comes in to see if risk and result were in line.