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In order to sue the orthopedic surgeon for medical negligence you must prove through expert testimony that the doctor breached the standard of care and that his breach was a proximate cause of injury. In your case, a careful review of the medical records and the operative report would have to take place to determine if there was a reasonable explanation for him not repairing the bicep tendon at the time of the rotator cuff surgery. There are a number of potential explanations for why he did not repair the tear at the time of your surgery so these issues would need to be analyzed. Even assuming that he was negligent in not repairing the bicep tendon at the time of your original surgery, you and your attorney would have to carefully evaluate what harms and loses you have sustained by virtue of having to have a second surgery to repair the tendon. It may be that the second surgery is successful and you recover fine without any ongoing problems and in that case the damages that you could recover by virtue of having to have a second surgery may be insufficient to justify suing the doctor. You should try to find out why the doctor didn't repair the bicep tendon before taking any legal action. If his plan was to repair the tendon only if certain findings existed at the time of the repair of the rotator cuff and he made an informed and reasonable decision not to extend the surgery any further so as to maximize the likelihood of the rotator cuff repair being successful you may have a difficult time proving his judgment was negligent.

In order to prove a medical malpractice case, a claimant must prove a failure to conform to accepted practice, resulting in an injury. A bad result is not enough, and if it is a "judgment call" by the doctor, there is no malpractice, even if the doctor made the wrong call. Your husband will need to get copies of ALL of his medical records and have a doctor review them; if the reviewing doctor is willing to testify that your husband's previous doctor failed to conform to accepted practice, then he has a case. From what you've said, this is something to look into: misdiagnosed cancer and a doctor saying he can't believe that the first doctor wouldn't it. But, this new doctor will never admit he said that, so you will have to hire an outside expert. Also, there will have to be proof that earlier diagnosis would have had a substantially greater result. Finally, it is your husband who has the primary case, yours is "derrivative" to his for loss of society and companionship, loss of value of household services and loss of consortium.

If you have a lawyer representing you, you should discuss with him/her these issues. However, in general, it is possible to obtain more than the policy limits but it is a complicated, long process that is only occasionally successful. Briefly, if the insurance company for the at-fault party refuses to accept a settlement offer within the policy limits as required by the terms of the offer (for example, according to the terms for amount, time of acceptance, time for payment, etc.), and if the case goes to trial and the verdict is for an amount in excess of the policy limits, the injured party can negotiate with the at-fault party to obtain an assignment of that party's "bad faith" claim against his insurance company for refusal to settle. The theory is that the insurance company is supposed to protect its insured and by refusing to settle within the policy limits when it had the opportunity to do so, it failed to protect its insured who then has a claim against the insurance company for that failure. However, since the insured now has a judgment against him for an amount in excess of the policy limits, when the insurance company pays the policy limits the at-fault party satisfies the balance by assigning his claim against the insurance company to the injured party.