Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Except in the case of catastrophic injuries, Massachusetts has imposed a cap on non-economic (pain and suffering) damages in malpratice cases, in the amount of $500,000.
Joint and Several Liability
In Massachusetts, when more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Massachusetts has eliminated the collateral source rule for medical malpractice cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. The statute of limitations for medical malpractice cases in Massachusetts requires that a case be commenced within three years after the cause of action accrues. A medical malpractice case must be commenced within no more than seven years after the act or omission allegd to be the cause of the injury to the plaintiff, except when the cause of action is based upon the leaving of a foreign object in the plaintiff's body.
For malpractice claims by minors under the age of six, a malpractice action may be filed up to the minor's ninth birthday, but in no case more than seven years after the act or omission allegd to be the cause of the injury to the minor unless the cause of action is based upon the leaving of a foreign object in the child's body.
Additional rules affecting malpractice litigation in the State of Massachusetts include:
Limits on Attorney Fees
Massachusetts caps attorney fees in medical malpractice cases to forty percent of the first $150,000 recovered, one third of the next $150,000, thirty percent of the next $200,000, and twenty-five percent of any award in excess of $500,000.
If at the time of judgment and after deduction of the attorney's reasonable expenses and disbursements for which the plaintiff is liable, and the fee payable to the attorney, the court determines that the amount of recovery payable to the plaintiff is less than the total amount of the plaintiff's unpaid past and future medical expenses included in the recovery, the court may not uphold a contingency fee unless the fee is or is reduced to twenty percent or less of the plaintiff's recovery, or is reduced to a level that permits the plaintiff's recovery to the amount of the unpaid past and future medical expenses included in the recovery.
Medical Malpractice Case Review
In Massachusetts, all medical malpractice cases must be submitted for review by a tribunal consisting of a justice of the superior court, a licensed physician and a practicing attorney. Following a review of the evidence submitted by the parties, the tribunal must determine if the evidence presented and properly substantiated is sufficient to raise a legitimate question of liability for judicial inquiry, or if the plaintiff's alleged injury is merely an unfortunate medical result that does not rise to the level of malpractice. The testimony of witnesses at the tribunal and the decision of the tribunal are admissible as evidence at trial.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Massachusetts has a general apology law, providing that statements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident, made to that person or to a member of their family, is inadmissible evidence of an admission of liability in a civil action.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.