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Massachusetts Medical Malpractice Law - An Overview

By Aaron Larson

Law Offices of Aaron Larson

July, 2004

Important Notice: The following overview of Massachusetts's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Massachusetts's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Massachusetts.

Contents

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

  • Misdiagnosis of, or failure to diagnose , a disease or medical condition;
  • Failure to provide appropriate treatment for a medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

Massachusetts limits noneconomic damages in malpractice cases to $500,000.00.

Collateral Source Rule

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in Massachusetts there is a mandatory offset for collateral source payments, in an amount determined by the court.

Rules for Expert Witnesses

Massachusetts does not impose special rules on expert witnesses in malpractice cases.

Joint and Several Liability

Under the rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment.

Statute of Limitations

Malpractice actions must be commenced within three years of the date of the act or omission giving rise ot the injury, or within three years of its discovery. All medical malpractice actions must be filed within seven years after the date of the act or omission giving rise to the injury, with the exception of actiosn for a foreign object being left inside the body, in which case the limitations period begins to run when the plaintiff discovers or should have discovered the presence of the foreign object. For medical malpractice claims involving minors under the age of six, a claim must be filed by the minor's ninth birthday, subject to the seven year limitation previously described.

Limits on Attorney Fees

In Massachusetts, attorney fees are limited to 40% of the first $150,000.00 recovered, 33% of the next $150,000.00, 30% of the next $200,000.00, and 25% of any recovery greater than $500,000.00.

Additional Rules

Massachusetts mandates the submission of medical malpractice claims to a medical tribunal, the results of which are admissible at trial.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.

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