Free Massachusetts Medical Malpractice FAQs | Free Massachusetts Medical Malpractice Legal Documents

What Happens If I Am Injured In The Course Of Medical Treatment?

Tue, 29 May 2007 21:19:00 GMT

If a medical professional makes an error that results in injury to the patient, the patient may be able to sue the negligent party or parties for monetary damages to compensate him or her for the medical injury. Medical malpractice claims arise when a health care professional or organization provides unskilled or negligent treatment that results in injury to the patient. The underlying basis for a medical malpractice claim is that you sustain an injury as a result of treatment that falls below the accepted standard of medical care for that particular field of professional expertise.

Under Massachusetts law, a physician or other health care provider is charged with possessing and exercising that reasonable degree of skill, care and learning ordinarily exercised by an average qualified physician or other health care provider in similar circumstances. Medical negligence is the failure of a responsible health care provider, either by action or omission, to exercise that degree of skill, care and learning under the particular circumstances.

Some examples of medical malpractice include incorrect diagnosis or failure to diagnose, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, foreign object left in the body, failure to properly monitor a patient, failure to order necessary tests, birth injuries, rendition of services without informed consent, etc.

How Do I Know If My Injury Constitutes Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Medical professionals are not expected to be infallible and there may be poor results from treatment that do not amount to malpractice. To establish malpractice, the injured party has the burden of proving that the health care provider negligently failed to meet the applicable professional standard of care for that health care provider. That means the health care provider failed to act as a reasonably prudent health care provider in Massachusetts would under similar circumstances. Health care providers are judged in comparison with similarly trained and qualified providers of the same class in the same community and in the same field of medical specialization. Likewise, a hospital owes their patients a duty of ordinary care to provide equipment and facilities reasonably suited to the intended uses and such as are in general use in similar hospitals under similar circumstances.

The injured patient must then prove that the health care provider`s breach of the standard of care was a proximate cause of the injuries to the patient. In other words, there must be a close connection between the action of the health care provider and the harm to the patient. Finally, you have to show what damages resulted form the alleged mistake. This may include medical bills, lost wages, pain and suffering, etc. Ordinarily, unless a health care provider`s conduct is readily recognizable by a layperson as causing the patient`s injury, expert opinion testimony is required before it can be inferred that the health care provider`s want of skill or care, if any, was the legal cause of the patient`s injury.

Medical malpractice claims are very difficult to prevail in and are also extremely expensive partly due to the need for qualified expert review and testimony. In fact, every medical malpractice action must be reviewed by a tribunal consisting of a judge, a lawyer and a physician to determine whether the evidence submitted is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff`s case is merely an unfortunate medical result. The panel`s findings and expert testimony are admissible at trial. If the panel finds against the claimant, the claimant must post a $6,000 bond for the payment of the defendants` costs if the claimant is unsuccessful at trial as well.

Is There A Time Limit In Which I Need To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

The law requires that you file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. In some instances, there are various exceptions to the statutes of limitation that may extend or limit the limitation periods. There may be special claims presentation requirements for claims against state and local government. For example, prior to suing a public entity, a claimant must provide written notice of the claim within two years from the time the cause of action accrued. For these reasons, it is important to consult an attorney as early as possible to be sure you don`t miss a crucial deadline.

Any medical malpractice action for injury or death must be brought within three years from the date when a plaintiff learns or reasonably should have learned that he has been harmed as a result of the defendant`s negligence. In no event, however, may a medical malpractice action be brought more than seven years following the alleged wrongful act, except where the action is based on a foreign object being left in the body. The statute of limitations for minors is the same as that for adults, except that a claim accruing on behalf of a child under six can always be brought before the child`s ninth birthday.

Who Can Be Held Accountable For The Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Generally, a medical malpractice claim can be brought against a licensed health care provider. This can include a person, corporation, facility or institution licensed by the state to provide health care or professional services, or an officer, employee, or agent thereof acting in the course and scope of his employment. A claim can be brought against physicians, dentists, nurses, therapists, technicians, hospitals, and pharmacists, among others. A physician commits medical malpractice if he fails to act in the same manner a reasonably prudent physician in the same field of medicine would act under the same circumstances. Nurses, therapists and other health care providers, and the hospitals or clinics they work for, can be held responsible for their failure to meet accepted standards of care in their particular field. In Massachusetts, a hospital can be held liable for the acts of physicians practicing there if the physicians are actual agents of the hospital.

There may be more than one cause of an injury. Massachusetts follows the doctrine of joint and several liability. This means that even when the negligent conduct of two or more parties contributes as causes of an injury, each party is liable for the entire judgment.

Does Signing A Consent Form Waive My Rights To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Signing a consent form in and of itself does not waive your rights. It is possible that the consent form does not contain all of the relevant information that it should or it may have been signed without adequate explanation. Even if you signed a consent form, you did not consent to substandard medical care. A doctor`s failure to meet the acceptable standard of care is not the same as consenting to the normal risks of a procedure.

A physician owes his patient the duty to disclose in a reasonable manner all significant medical information that he possessed or reasonably should have possessed that would have been material to an intelligent decision by the patient regarding a course of treatment. The information the physician reasonably should possess is that information which is possessed by the average qualified physician practicing in the specialty of the physician at that time. Materiality is the significance a reasonable person would attach to the disclosed information in deciding whether to submit or not to submit to surgery or treatment. The appropriate information to be disclosed may include the nature of the patient`s condition, the benefits to be reasonably expected, the irreversibility of the procedure, the likely result of no treatment, and the available alternatives, including their risks and benefits.

How Much Can I Expect An Attorney To Charge To Handle A Medical Malpractice Case?

Tue, 29 May 2007 21:19:00 GMT

Most attorneys who believe a case has merit will take the case without payment up front. They will take the case on a contingency basis, which means they will receive a percentage of your award if and when you recover for your injuries. If you and your attorney agree to a contingency fee, the attorney must put the agreement in writing and provide you with a signed copy. Some attorneys may charge an hourly fee or a flat fee for their services.

The amount of the contingent fee for an attorney representing a claimant in an action for medical malpractice cannot be in excess of the following: (1) 40 percent of the first $150,000 recovered, (2) 33 1/3 percent of the next $150,000 recovered, (3) 30 percent of the next $200,000 recovered, and (4) 25 percent of any amount by which the recovery exceeds $500,000.

Out of pocket expenses include such things as filing fees, deposition fees, expert witness fees, exhibit costs, copying charges, and other similar expenses. The attorney`s out of pocket costs are, in many cases, not included in the attorney`s fees. You should be sure to pay attention to how an attorney will bill you for costs. In a medical malpractice case, these expenses can be quite high due to the need for expert testimony and because they are hard fought cases, which in many cases do not settle until they have been thoroughly litigated. Many attorneys will decline a case unless there is potential for a substantial verdict or settlement.

What Damages Can Be Recovered For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

As a victim of medical malpractice, you can sue for your injuries and all of the direct consequences of those injuries. You can recover your actual economic losses such as the costs of reasonable and necessary medical care, rehabilitative services, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury caused by the malpractice. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries caused by the malpractice.

You are also entitled to noneconomic damages for physical pain and suffering, mental and emotional suffering, physical impairment, inconvenience, disfigurement, loss of enjoyment of life, loss of consortium (disruption of your personal relationship with your spouse), etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence. Punitive damages are intended to punish a defendant for reckless or malicious behavior and are only awarded in rare cases.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

In Massachusetts, there is a limitation of damages for pain and suffering that a plaintiff may receive in a medical malpractice case. The jury may not award more than $500,000 noneconomic damages unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained. Liability of a public entity is limited to $100,000 and no public entity may be liable for punitive damages.

How Can I Determine How Much My Claim Is Worth?

Tue, 29 May 2007 21:19:00 GMT

Attorneys are prohibited from promising that they will obtain a certain amount of money for you. For purposes of settlement, a claim is valued upon an estimate of what a jury would likely believe the case to be worth, taking into account the severity of the injury, the effects of the injury on your life and the negligence of the other party. If you were partially at fault for the accident, the amount of damages will be reduced proportionately. Benefits received from some collateral sources may be used to reduce your recoverable economic damages. Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. Other factors that may reduce the damages include past medical history, preexisting injuries, and prior claims history.

Considerable compensation may be commanded if your injuries are severe requiring extensive medical treatment, absences from work and permanent injuries. This is especially true if you were a healthy, productive, young worker prior to the accident. That is because an important factor in the value of your claim is the difference between your quality of life before the accident as compared to after the accident.