Do I Have a Medical Malpractice Case?

Patients harmed in the course of receiving treatment or care from a doctor, nurse, medical technician or other health care provider may wonder: “Do I have a medical malpractice case?”

At Jeffrey Glassman Injury Lawyers, our Boston medical malpractice attorneys are dedicated to helping answer that question. We understand these cases are often complex, the burden of proof on the plaintiff’s shoulders is substantial and the filing requirements are extensive.

We must note that most health care providers strive every day to offer patients the best care. There are times when things go horribly wrong, and it does not necessarily mean there are grounds for a medical malpractice lawsuit.

This can be a difficult concept to grasp. The key question is whether doctor or other health care provider failed to adhere to the “accepted standard of care.” In other words, upon review by a similarly-situated professional, did the health care worker fail to provide the kind of care a responsible, reasonable professional would under the same circumstances?

At the very basic level, one must consider:

• Did the doctor or medical professional who was treating the patient make a mistake?
• Was the patient harmed as a result of that mistake?
• Did the patient and/or loved one sustain losses as a result of that harm?

Unfortunately, people become injured and ill all the time, and it doesn’t necessarily mean the health care providers are to blame. However, those who do seek and receive medical treatment have a reasonable expectation of quality care. When there is a failure to provide quality care and that failure directly results in injury, illness or death, legal action may be warranted.

Some common types of medical malpractice cases in Boston include:

• Failure to Diagnose
• Misdiagnosis
• Delayed Diagnosis
• Medication Errors
• Improper Treatment
• Failure to Treat
• Childbirth Injuries
• Hospital-Acquired Infection
• Defective Medical Devices
• Dangerous Drugs
• Failure to Warn Patient of Known Risks
• Surgical Mistakes

In order to determine whether you have a claim, your attorney will conduct review the following:

• Did a health care provider- patient relationship exist? There must be a professional relationship established in order to hold a doctor or hospital liable.
• Was the doctor negligent? This goes beyond proof of a poor health care outcome. It involves showing that the health care provider did not adhere to applicable standards of care.
• Was the patient injured? A doctor who makes a mistake –even an egregious one – resulting in no injury to a patient will not be held liable for medical malpractice. The general ruling is that the doctor’s error “more likely than not” caused patient harm, injury or illness.
• Did patient’s injury result in compensable losses? This would be weighed in terms of physical pain, medical bills, lost wages, lost earning capacity, mental anguish, loss of companionship or wrongful death.

The Commonwealth has very specific statutory requirements that restrict when a claim can be brought, require specialized types of evidence and limit the damages that may be collected.

Per Massachusetts G.L. ch. 260 §4, claims for medical malpractice generally need to be filed within three years of the cause of action, which is either the date of injury or the time at which plaintiff discovered or reasonably should have discovered the injury.

There are some exceptions to this rule, but if it’s been more than three years since the date of injury, the case will require especially careful vetting from your attorney.

An attorney who accepts your medical malpractice claim will explain one of the first hurdles you must clear in order to prevail is clearance from the Massachusetts Medical Malpractice Tribunal. Pursuant to Massachusetts G.L. c. 231 § 60B, plaintiffs must first file a complaint against defendant(s) in court. Following service of that complaint on defendant and an answer from defendant, the court will set a date for the Medical Malpractice Tribunal to determine the legal veracity of the claim.

The tribunal is comprised of a three-member board: A judge, a lawyer and a physician or other health care provider who is in the same specialty as defendant.

Here, plaintiff will present written facts of the case, submission of an expert witness’s report supporting the claims, an affidavit from plaintiff and any other pertinent hospital or medical records.

If the tribunal decides the case in plaintiff’s favor, the case will move forward to the pre-trial phase. If the tribunal does not find in favor of plaintiff, there must be a $6,000 bond posted by plaintiff within 30 days in order for the case to proceed.

From there, the case will generally follow the usual course of civil cases, although the discovery process tends to be fairly extensive in these cases.

If a settlement isn’t reached, a jury trial is held. That usually occurs within three years of when the complaint was filed.

Non-economic damages for medical malpractice cases are capped at $500,000, though there may be exceptions for severe, permanent injury or disfigurement.