Last week we began a two-part series looking at six facts about medical malpractice cases that individuals should keep in mind when deciding whether to sue a health care provider for medical malpractice. In part I, we covered the first three facts, and today, in Part II. we look at the remaining three facts to consider:
1. Be Prepared With Expert Witnesses
An injured patient wishing to sue and recover for his or her health care provider’s negligence should – and in most cases must – be prepared to support his or her case with the testimony of expert witnesses. In the 1984 case Forlano v. Hughes, the Supreme Judicial Court of Massachusetts held that it would be an “exceptional case” in which a jury could determine whether a health care provider was negligent without the assistance of “expert medical opinion.”
In Forlano, the plaintiff argued that his doctors were negligent during a procedure when, amongst other things, the medical dye Pantopaque entered his skull. This resulted in permanent and severe headaches for the plaintiff. The plaintiff argued that the jury could have inferred that his healthcare providers were negligent from evidence that the dye was not intended to enter his head, that it was standard procedure for a patient’s head to be elevated during the particular procedure the plaintiff underwent, and that the plaintiff’s head was not elevated during this procedure. The medical dye was later found in the plaintiff’s skull and found to be the cause of the plaintiff’s headaches. The Supreme Judicial Court found though that this evidence was insufficient to show that the dye entered the plaintiff’s skull as a result of his health care providers’ negligence.
Thus, while the Forlano decision does not mean all medical malpractice plaintiffs must use expert witnesses to show how their health care providers’ negligence caused their injuries, the Forlano decision does clearly indicate that Massachusetts courts regard the use of expert witnesses as the norm, and not the exception.
2. There is a cap on Damages for Pain and Suffering which can be exceeded under limited circumstances
The Massachusetts Legislature has imposed a limit on the dollar amount of damages a medical malpractice plaintiff can receive for general, non-economic damages. Massachusetts General Laws chapter 231, Section 60H states that neither a judge nor jury is to award a malpractice plaintiff more than $500,000 for “general damages,” such as pain and suffering, loss of companionship, and embarrassment. There is an important exception, however: if the judge or jury finds there is a “substantial or permanent loss or impairment of a bodily function,” “substantial disfigurement”, or other “special circumstances,” then the judge or jury may exceed the limitation and award the plaintiff more than $500,000 for general damages. As might be expected, however, a plaintiff would bear the responsibility of putting on evidence for the judge or jury to find that the $500,000 limitation does not apply.
3. You May Have to Take Certain Steps if Your Healthcare Provider is a Public Entity
Even if your healthcare provider is a public entity (i.e., state-government institution), you may still bring a medical malpractice suit for negligence. However, your suit would be against the Commonwealth of Massachusetts, as public employees are “immune” – that is, they cannot be sued – for personal injury or wrongful death. Prior to suing a public entity, you are required to provide a notice of the claim within two years of the date your suit “accrued” or began. Additionally, the claim must be brought within three years of the date your cause of action started.
As you can see, medical malpractice is a very detailed and complex area of law, often requiring the use of expert witnesses. A failure to provide the right expert testimony, or even a missed deadline can mean your case may be dismissed, or that you may receive no recovery. That is why hiring an experienced medical malpractice attorney is so crucial. Contact us at 508-755-7535 for a free consultation.