We depend on medical professionals to help us live a long, healthy life. When medical professionals such as doctors, nurses, or other licensed health care providers do not follow generally accepted medical practices and standards in diagnosing or treating a patient, that patient may be able to recover damages against that health care provider in a medical malpractice suit. Before rushing to file a medical malpractice suit in Massachusetts, however, there are a few points to keep in mind:
1. You Must First go to a Mandatory Tribunal
Choosing to sue your healthcare provider for medical malpractice means that you will first have to submit your case to a tribunal. Massachusetts General Laws Chapter 231, Section 60B provides that “every action for malpractice” is to first be heard by a group consisting a justice of the superior court, a physician licensed to practice medicine in the commonwealth, and an attorney licensed to practice in the commonwealth. As a plaintiff in a medical malpractice suit, you must present evidence to the tribunal to show there is a “legitimate question of liability,” and that your case is not merely one involving an “unfortunate medical result.” All the evidence presented to the tribunal, including any expert testimony, is admissible at a subsequent trial.
If you do present enough evidence to clear this hurdle – such as medical records and expert opinions – then your medical malpractice case can proceed to trial. Failing to present enough evidence to the tribunal does not mean your case is over, but it does mean you will need to post a bond of at least $6,000.00 if you still want your day in court. The bond is to help cover the costs of the health care provider in defending against your suit in case you are not successful at trial.
2. You Only Have a Limited Time to Bring a Medical Malpractice Suit
If you are thinking of filing a medical malpractice suit, you may not have as much time to file as you might think. Under the Massachusetts General Laws, Chapter 260, Section 4, a medical malpractice suit must be brought “within three years” after the injury occurs. Your injury “occurs” or “accrues” when you learn, or reasonably should have learned, that you were injured by your healthcare provider. The law is clear, however, that a medical malpractice suit cannot commence more than seven years after the injurious conduct. There are significant exceptions and caveats to these timelines, however, so it is important to discuss your exact situation with an experienced medical malpractice attorney.
3. Your Own Negligent Conduct Matters
If you yourself were somehow careless or negligent and your conduct worsened your injuries, under some circumstances it is possible that you may not be entitled to recover at all, while under other circumstances you would recover compensation, but less than the full value of your claim. That is because Massachusetts has adopted the principle of “contributory negligence.” Under this principle, codified in the Massachusetts General Laws, Chapter 231, Section 85, a judge or jury can look at your negligent or unreasonable conduct and reduce the amount of your monetary recovery by that percentage. For example, if a jury determined that you were 20 percent negligent and that the negligence of the defendant health care provider was 80 percent, the amount of your total damages as determined by the jury would be reduced by 20 percent by the clerk of courts. However, if your negligent conduct is greater than the negligent conduct of your health care provider — for example, if you are 51 percent responsible for your own injuries, whereas the defendant healthcare provider is only 49 percent responsible – you are not entitled to any recovery.
To illustrate this principle, consider a highly summarized version of the case of Krklus v. Stanley. In this case, the plaintiff Mr. Krklus was diagnosed by Dr. Stanley as having high blood pressure. Dr. Stanley gave Mr. Krklus two prescription medications as a result. Mr. Krklus continued to feel ill and complained of chest pains and nausea, so he returned to Dr. Stanley. Mr. Krklus falsely told his doctor that he was taking his medications when in fact he was not. Mr. Krklus died two weeks later from an aortic dissection brought about because of his high blood pressure. Mr. Krklus’ wife filed a medical malpractice suit against Dr. Stanley and his employer, alleging that Dr. Stanley failed to accurately diagnose Mr. Krklus’ aortic dissection. Dr. Stanley and his employer argued contributory negligence, stating that Mr. Krklus’ aortic dissection was brought about because of high blood pressure, and not only did Mr. Krklus not take his prescribed medications to help alleviate the high blood pressure, but Mr. Krklus also lied to Dr. Stanley by telling Dr. Stanley that he was in fact taking his prescriptions. A jury found in favor of Dr. Stanley. On appeal, an Illinois appellate court agreed that because of Mr. Krklus’ contributory negligence in not taking his prescriptions and lying to Dr. Stanley, the jury’s verdict was proper and Mrs. Krklus was not entitled to any monetary recovery.
The silver lining to this principle for plaintiffs is that your healthcare provider must introduce evidence of your negligent or unreasonable conduct. Otherwise, you are presumed to have acted reasonably.
4. 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.
5. 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.
6. 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.
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