Medical Malpractice: Resource for Injured Patients

Medical malpractice is professional negligence – either by act or omission – of a health care provider that involves a deviation from the accepted medical community standards of practice and results in injury or death to a patient.

At Jeffrey Glassman Injury Lawyers, our Boston medical malpractice lawyers recognize that not every poor medical outcome is the result of malpractice. However, the devastating outcomes in many of these cases is a direct result of negligence on the part of doctors, nurses, emergency medical workers or hospital administrators.

Here, we offer resources to those who believe they or a loved one has been a victim of medical malpractice. Our goal is to answer questions concerning things like:

• Do You Have a Medical Malpractice Case?
• Frequency of Medical Error
• Missed diagnosis/ Wrong Diagnosis/ Failure to Test
• Dangerous Drugs and Medical Devices
• Infections
• Choosing a Medical Malpractice Lawyer
• Contingency Fees
• Statute of Limitations
• Hospital Liability
• Damage Caps

We understand prospect of litigation is daunting for many people, especially after what they have just endured. Many patients and those close to affected patients are traumatized. Our compassionate legal team is available to help you at each stage of the process.

We recognize medical malpractice lawsuits can be incredibly complex. Expert witness analysis and investigation is often required to prove a case. The burden is substantially different from general personal injury cases. In fact, one of the key differences is that unlike ordinary negligence cases, medical malpractice lawsuits have to first be vetted by a tribunal – the Massachusetts Medical Malpractice Tribunal – before progressing to trial phase.

It is imperative throughout this process that you be represented by a medical malpractice attorney in Massachusetts who has the knowledge, skill and resources to prove your case.

If you are considering making a medical malpractice claim in Massachusetts, you should have a basic understanding of the criteria for such cases.

When determining “Do I Have a Medical Malpractice Case?” one needs to consider at the very basic level whether:

• A doctor or medical professional who was treating the patient made a mistake.
• Patient was harmed as a result of that mistake.

Going into a bit more detail, plaintiff must be able to show:

• A health care-patient relationship existed. You have to show you hired or received care, treatment or professional advice from a health care provider as part of an established professional relationship. Usually, this is straightforward, but questions can arise if a consulting physician did not provide direct care to patient.
• Doctor was negligent. Simply being unhappy with treatment outcomes doesn’t necessarily mean the physician is liable for medical malpractice. First, there needs to be a showing that there was negligence in connection with a patient’s diagnosis or treatment. Plaintiff has to be able to prove the doctor or health care provider caused harm in a way that a reasonable, competent professional in the same circumstances would not have done. It’s not necessary for doctors to provide the best care. However, they do have to provide care that is reasonably skillful and careful. Even before trial – patients or their representatives need to present testimony of a medical expert witness to establish appropriate standard of medical care and offer an opinion as to how defendant deviated from that standard.
• Doctor’s negligence caused injury. In many cases, a patient may already be injured or sick, and that can complicate the question of whether doctor’s action or inaction was in fact the cause of harm. In a case where a patient who dies from cardiovascular disease following the negligent action of a physician, plaintiff would need to show the outcome would have been different but for the doctor’s actions. One has to show that “more likely than not,” the doctor’s action or inaction caused the injury directly.
• Injury resulted in damages. Patient has to show he or she suffered additional, compensable harm. This could be in the form of physical pain, mental anguish, medical bills, lost wages and earning capacity or wrongful death.

Medical errors are unfortunately extremely common. A study published in 2013 in the prestigious Journal of Patient Safety revealed an estimated 440,000 people die in the U.S. every year as a result of preventable medical errors. Countless many others survive, but suffer severe illness or other harm.

With that revelation, we learn the Frequency of Medical Errors means they are the third-leading cause of death in the U.S., just behind cancer and heart disease. More people die due to medical errors than are killed in car accidents, diabetes and other widespread hazards.

The new figure trumps the previous estimate of 98,000 medical error deaths annually, released by the Institute of Medicine in 1999.

These medical errors include things like:

• Objects left inside a surgical patient
• Missed diagnosis
• Misdiagnosis
• Delayed Diagnosis
• Medication errors
• Prescription of dangerous drugs/ medical devices
• Hospital-acquired infection

Major contributing factors include staffing shortages, health care worker fatigue and poor training/ practice.

The Institute of Medicine, which is the health subsidiary of the National Academy of Sciences, reports diagnostic errors affect some 12 million American adults each year. That’s roughly 5 percent of adults who receive outpatient care.

Put another way, the majority of Americans who go to a physician will receive a diagnosis that is either wrong or delayed at least once in their lives. In fact, these types of health care errors are more common than surgery mistakes or medication mishap. In some cases, consequences for Missed Diagnosis/ Wrong Diagnosis and Failure to Test are dire. A failure to properly or timely diagnose a serious condition can result in a patient losing critical time necessary to successfully treat it.

Data on diagnostic errors and failure to test is inadequate. Usually, such mistakes are only identified following an autopsy or as a result of a medical malpractice lawsuit.

Failure to test is the result of not ordering the appropriate tests that would have revealed an underlying issue or ailment.

In many cases, researchers have found, it’s not a single doctor who is responsible for a wrong or missed diagnosis, but rather a flawed health care system. An experienced attorney can help sort through the facts to identify all potentially liable parties.

Millions of Americans rely on prescription medications and medical devices in order to prevent, control and treat injuries, illnesses and disease. But additional harm can be caused when those medications or devices are either dangerous or defective.

In some situations, it is the Dangerous Drugs and Medical Devices that are solely to blame for terrible outcomes. In those cases, a product liability lawsuit may be warranted to hold the manufacturer accountable.

However, there are also situations in which the health care provider is partially or wholly responsible.

If a physician or surgeon fails to properly communicate potential dangers of a certain drug or drug interaction, or prescribes a medication without taking into full account the possible adverse effects on a patient, this could be a form of medical malpractice. Similarly, if a medical device or implant is used without reasonable care and prudent consideration of the harmful effects, this too could be a form of medical malpractice.

By retaining the guidance of an experienced Boston medical malpractice attorney who is closely familiar with medical negligence case law and procedures, victims improve their chances of receiving compensation for their losses and holding accountable those who erred.

Not all serious Infections resulting from surgery or other medical treatment are the result of medical malpractice. But sometimes they are, and that’s why it’s important to have an attorney carefully evaluate your case.

Hospital-acquired infections – formally referred to as “nosocomial infections” – are one of the top causes of patient deaths in the U.S. According to the Centers for Disease Control and Prevention, 1.7 million patients incur a hospital-inquired infection each year, and of those, an estimated 100,000 die.

Some examples of hospital-acquired infections include:

• Surgical site infection
• Central line-associated bloodstream infection
• Catheter-associated urinary tract infection
• Ventilator-associated pneumonia
• Staph infection/ MRSA
• Bacterial infections

The harmful effects can range from mild skin irritations or illness to serious complications and even death.

Individuals seeking legal counsel for medical malpractice issues should seek the advice of a Massachusetts medical malpractice attorney with ample experience in this particular area of law.

It’s also important for the law firm handling the case to have access to resources. As most cases are handled on a contingency basis, Choosing a Medical Malpractice Lawyer should also involve making sure that firm has the ability to pay upfront for a full case review, in-depth investigation and expert witness consultation.

It’s important to steer clear of law firms that make bold promises. It’s also important that the fee structure is clearly explained at the outset.

In addition to extensive experience in handling medical malpractice lawsuits, your attorney should be able to provide track record of positive outcomes in similar prior cases.

Those considering filing a medical malpractice lawsuit in Boston often wonder, “How much will hiring a lawyer cost?” The answer for many is encouraging.

Our medical malpractice attorneys throughout Massachusetts offer free initial consultations, and then cases generally proceed on a Contingency Fee basis. What that means is if we take your case, we don’t require payment unless the case is resolved successfully, either through a pre-trial settlement or jury award.

Typically, the entire fee for your attorney will be paid as a percentage of the award in the case. If we do not win, no fee is paid. The portion of the award can vary, but it tends to be somewhere between 30 and 45 percent. Variation depends on the details of the case, the estimated costs of pursuing litigation, and the odds of success.

In the Commonwealth of Massachusetts, the Statute of Limitations for any medical malpractice lawsuit is three years. That means action must be brought within three years after the cause of action accrued – but no more than seven years after the alleged omission or act. The only exception would be foreign object actions.

This is per Massachusetts G.L. c. 260 § 4.

The “cause of action” for medical malpractice claims is when plaintiff learns – or reasonably should have learned – he or she has been harmed as a result of defendant’s conduct. In some cases, the statute of limitations may be tolled during a claimant’s disability. Medical malpractice injury cases involving minors follow the same guidelines, except that claims involving children under the age of six can be brought up to the child’s ninth birthday.

In no case can a claim be brought after seven years.

When patients are injured as a result of care or treatment received in a hospital setting, the hospital may be liable for negligence or medical malpractice.

Hospital Liability is usually the result of vicarious liability for the negligent acts of hospital employees, such as paramedics, nurses, medical technicians and others. In some cases, doctors are also employees, but many times, they are not.

The key questions are:

• Was the negligent worker an employee?
• Was the employee engaged in a job-related action?
• Was the patient injured as a result of that action?

Where the answer is affirmative to all three questions, hospitals may be held vicariously liable. Hospitals can also be found directly negligent if some flawed policy or procedure contributed in any way to patient’s injury, illness or death. This could include failure to initiate or follow certain standards of cleanliness or security or if the hospital keeps an incompetent doctor on-staff.

In some instances, even when a negligent doctor is not an employee, plaintiffs can sue the hospital for his or her malpractice if it is not made clear to patient that the doctor is NOT an employee.

Per Massachusetts G.L. c. 231 § 60H, damages awarded to plaintiffs – except for medical expenses – are capped at $500,000 for non-economic damages. These would be awards for losses such as:

• Pain and suffering
• Mental anguish
• Loss of companionship
• Embarrassment

These Damage Caps may only be exceeded in cases in which patient suffered substantial or permanent loss or impairment of a key body function. There may also be exceptions where there is some special circumstance that calls for a higher damage award.

Making matters worse is the fact that many Massachusetts hospitals are deemed “charitable organizations,” which are protected by damage caps of $20,000.

For more information about issues pertaining to medical malpractice law in Massachusetts, call to speak to a member of our dedicated, compassionate legal team.