Medical Malpractice Information

Click to download (pdf) | By Attorney Susan M. Mooney

The purpose of this document is to explain to you what you must prove if you are to be successful in a malpractice case. After you have read it, please let us know if you have any questions.

GENERAL STATEMENTS ABOUT THE LAW OF MALPRACTICE

It is important to realize that, just because you may have had a bad result of your treatment, THAT DOES NOT NECESSARILY INDICATE THAT YOU HAVE A MALPRACTICE CASE. There may be many reasons why you did not get well, or why you may even seem to be worse after treatment. Nevertheless, you are entitled to recover against the doctor or dentist only when the bad result was caused by their negligence.

In order to recover in a malpractice case, we must prove your case. The burden of proof is always on the patient.

What do we have to prove?

WE MUST PROVE THAT THE DOCTOR NEGLIGENTLY FAILED TO FOLLOW THE STANDARDS OF PRACTICE OF OTHER DOCTORS IN THE SAME FIELD WITH THE SAME EDUCATION, TRAINING AND EXPERIENCE.

The law requires the doctor to take a proper medical history, to do a reasonable physical examination, and to order tests, which are necessary under the circumstances. If consultation with a specialist is necessary, the doctor may become liable for not recommending such consultation. In any case, the doctor will only be liable to provide the reasonable services and treatment, which are reasonably available to the doctor. (For example, a doctor in a small town cannot be held liable for failing to provide services which may be available only in a larger, more sophisticated medical community).

After hearing your complaints, and making reasonable tests, the doctor must make a “diagnosis”. If the doctor makes a wrong diagnosis, the doctor may or may not be liable; the doctor will not be held liable if other reasonable doctors in that same circumstance could have made a wrong diagnosis, based on your symptoms and test results.

After the doctor has made a diagnosis, the doctor must use his/her best judgement to select a proper course of treatment. Although other doctors may have selected a different type of treatment, your doctor is liable only if he/she did not follow a course of treatment thought to be reasonable by some doctors. AGAIN: the mere fact that your treatment was not successful is not enough to prove a malpractice action.

How do we prove your case?

Ordinarily, we must have an “expert witness” – another doctor – willing to testify that he/she knows the standards of care in your case, and further that your doctor did not follow those standards, resulting in your injury. As you can imagine, it is difficult to find one doctor who will testify against another. Frequently we must go out of State to locate such a doctor. This alone makes malpractice cases very expensive to handle.

EXPERT WITNESS:

We are lawyers and not doctors. We are able to advise you as to your legal rights; however, medical questions must be left to expert medical doctors. The law requires that, if we are to be able to win a malpractice case, we must have a medical doctor to testify and explain why you have a case. If after our initial evaluation we feel it is worthwhile, we will recommend as the next step, obtaining an expert medical opinion.

A doctor must review your case and testify if necessary. They will not, however, do so until they are paid their fees for their services.

We do not charge legal fees for investigating your case. We charge only for out-of-pocket expenses during the investigation, such as expert fees. If we obtain sufficient evidence from the expert to continue with your case, we will discuss legal fees and additional expenses with you before accepting your case or filing suit.

TRIBUNAL:

After suit is filed, Massachusetts law requires that a malpractice case be heard by a malpractice tribunal (a panel of three (3) persons; typically a judge, a lawyer and a physician). At the tribunal we must present expert witness support, usually by submitting a written report from the expert, that the case has a reasonable likelihood of success. Thus, it is imperative that a written expert opinion is obtained before filing suit. If the tribunal decides that there may be negligence and therefore a likelihood of success, then your case is allowed to proceed through the Court system to trial without any bond requirement. However, the other option available to the tribunal is a decision that there may have been an “unfortunate medical incident” but that it does not rise to the level of negligence. If the tribunal determines that it is an “unfortunate medical incident” your case will be dismissed and if you wish to prevent a dismissal, a bond must be posted with the Court. (The current bond is $6,000.00 per party that you have named as a defendant in a malpractice case). For example, a case against a doctor and a hospital would require a $12,000.00 bond if the tribunal decision was not favorable to you but you still wish to proceed with the case in spite of the tribunal’s decision.

Next, WE MUST PROVE THAT THE DOCTOR’S BREACH OF THE STANDARDS OF CARE CAUSED THE INJURIES AND DAMAGES, WHICH YOU CLAIM.

Although your doctor may have been negligent, he/she is not liable for illness, sickness or damages which you might have had even if you had not seen the doctor. In other words, if you were sick or injured when you went to the doctor to start with, the doctor is not liable for that complaint, nor is he/she liable for any further illness or damage, which was the natural result of your condition. We often see cases where the doctor originally makes a wrong diagnosis, such as failing to see a fracture on an X-ray. Nevertheless, if this doctor or someone else very soon realizes the error and undertakes the proper treatment, the doctor will probably not be liable, since you will have suffered no additional damages from the erroneous diagnosis.

If your original condition was incurable or untreatable, then you will not be able to recover for malpractice. We see this often in cases of malignancy, which are fatal, regardless of when they are found.

Very often complications occur during treatment which are not the result of negligence. For instance, you may suffer side effects of drugs, which are absolutely necessary for your treatment. The mere fact that you have a reaction is not enough to entitle you to recover. These are what are known as “acceptable complications” and if other doctors agree that they are “acceptable”, we may not be able to help you. In a similar case, however, the doctor would be liable if there was a known reason to not give you the drug which caused the side effects (such as an allergy or existing medical condition).

IF WE ARE ABLE TO PROVE THAT YOUR DOCTOR WAS NEGLIGENT AND THAT THE DOCTOR’S NEGLIGENCE CAUSED YOU SOME INJURY, THEN WE MUST PROVE WHAT DAMAGES OCCURRED TO YOU FROM THE DOCTOR’S NEGLIGENCE AND WHAT THESE DAMAGES ARE WORTH FINANCIALLY.

If we are able to prove your right to recover, there are certain items of damage which you are entitled to recover. Some of them are:

  1. Past, present and future pain and suffering;
  2. Past and/or future loss of income or earning capacity;
  3. Out-of-pocket expenses, such as past and future medical bills, hospital bills, drug bills, etc. You may be entitled to recover these damages even though you had health insurance to cover them; however, health insurance companies may require you to repay them from your recovery;
  4. Loss of enjoyment of life: that is, payment for the fact that you are no longer able to engage in your normal recreational, family and social activities;
  5. Mental anguish; and
  6. Disfigurement and scarring.

If you are married, then your spouse may also be entitled to recover damages for LOSS OF CONSORTIUM. This is the value of services which you normally rendered to your spouse in the way of companionship, housework, yardwork, sexual relations, etc.

As to medical expenses, you may not be entitled to recover all of your expenses. You will be entitled to recover only those expenses over-and-above what your bills would have been even if there had not been malpractice. For instance, if you go into the hospital for treatment for which you would have been required to stay for five (5) days, and the malpractice causes you to stay an additional five (5) days, you could only recover for the additional five (5) days caused by the malpractice. The same is true for your pain and suffering, lost wages, etc. Usually it is very difficult to separate what damages were caused by your original illness and what were caused by the doctor’s negligence, but we have the burden of proving the difference.

CONCLUSION:

IT IS EXTREMELY DIFFICULT TO WIN A MALPRACTICE CASE BEFORE A JUDGE AND JURY IN MASSACHUSETTS. Statistics show that the doctors win a large percentage of the cases brought against them. There are strict time requirements for filing suit on malpractice cases. Failure to file suit in Court within the strict time requirements that apply to your case will bar your right to pursue a claim in the future.