Articles Posted in Medical malpractice

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In all civil lawsuits, parties are obligated to follow the deadlines set by the court. Missing a deadline can have serious consequences, resulting in either the dismissal of your case if you’re the plaintiff or a judgment entered in favor of the plaintiff if you’re the defendant. A recent Massachusetts personal injury action is an example of the consequences injured parties face.

In this case, the injured parties filed suit against a “big box” store’s pharmacy, alleging it had filled a prescription with a dosage 10 times higher than prescribed. Tracking TimeThe patient alleged that when he took these pills over a four-day period in 2009, he suffered renal failure and other physical issues. The injured patient sought damages for his hospital and medical expenses, lost wages, and pain and suffering. His wife also filed suit for loss of consortium and lost wages.

As the proceedings moved forward, the district court set a deadline of July 1, 2015 for the plaintiffs’ expert witness disclosures, or the list of people they intended to call to testify as experts in the relevant field. The injured person missed this deadline, and the defendant pharmacy moved to prevent the plaintiffs from offering any expert testimony. The court provided the couple with an extension, moving the deadline to December 21, 2015. With the extension, the injured parties provided the name of one doctor as a prospective witness but failed to include a report by the doctor to the defendant, as required by the pretrial order. No other prospective experts were named.

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In some personal injury actions, an injured party must provide proof prior to formal litigation. Parties injured by medical negligence must submit proof to a medical malpractice tribunal demonstrating that a health provider defined in Massachusetts G. L. c. 231, § 60B did not conform to good medical practice, resulting in damages. This is a prelude, or truncated version, of what must be done in personal injury civil litigation to successfully obtain damages.

The injured party in this Massachusetts medical malpractice case (16-p-1626) had a robotic-assisted laparoscopic radical prostatectomy in 2012 but continued to experience pain, infection, incontinence, and other problems. After two years, the injured patient sought treatment. An examination showed the presence of a large bladder stone. The injured patient underwent another procedure to remove the stone, in which a Wek Hem-o-Lok clip was discovered inside the stone. Hem-o-Lok clips were used in the prostatectomy in 2012.  Surgical toolsThe injured person then filed suit, alleging medical malpractice and following the procedural requirement of presenting the necessary proof before the medical tribunal.

The injured patient provided the tribunal with medical records and an opinion letter from a board-certified urologist that stated the acceptable standard of care for a qualified urologist to use during a robotic-assisted radical prostatectomy mandated the physician to apply the clip properly, know when a clip was not locked properly or loose, and actively search, find, and fix any clips that loosened during the procedure. The injured person’s expert opined the clip fell loose during the prostatectomy, traveled to the bladder when the bladder neck was open during the surgery, and was left inside the patient as they were closing him up. The doctor concluded the defendant providers violated the applicable standard of care by failing to properly apply the clip, appreciate and recognize the loose clip, actively search for the clip, find the clip in the bladder, and retrieve it prior to closure. The doctor stated this failure resulted in the stone’s formation, pain, infection, and the otherwise unnecessary surgery to remove the clip. Despite this testimony, the tribunal dismissed the claim. The injured person appealed.

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Any award of damages in a Massachusetts injury case, whether through a plaintiff’s verdict or settlement agreement, can still present challenges if the defendants either fail to pay or cannot pay the ordered amount.  The federal First Circuit Court of of Appeals addresses this in Vargas-Colon v. Foundation Damas, Inc. (Nos. 16-1213 and 16-1620).  The underlying injury happened to a child who was born by cesarean section after the mother had been in the hospital for several hours.Operating room  Because of this delay, the child did not receive enough oxygen and suffered permanent neurological defects.

The parents initiated a medical malpractice action in the federal district court, alleging the doctor and hospital were negligent in the care and delivery of the child.  The parties reached a settlement agreement with the defendants paying $1.5 million in eight installments.  This was entered into a judgment, and the district court retained jurisdiction over the terms of the settlement.  After the first payment of $400,000, the hospital failed to make the scheduled payments.  Instead, the hospital filed for bankruptcy.  The plaintiffs moved to dismiss the hospital’s bankruptcy petition alleging several claims including fraud and bad faith.

The bankruptcy case proceeded, and a reorganization plan was confirmed for the hospital for the court.  Within the plan was a supplement that assured any medical malpractice claimant that they could still file a motion or legal action against the hospital in the pursuit of an action or collection of funds.  The plan also did not preclude medical malpractice claimants from pursuing actions against third parties.  At this point the plaintiffs only received a little under $645,000 – less than half of the $1.5 million agreed upon in the settlement agreement. 

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In Massachusetts medical malpractice actions, the injured person must take extra steps by going before a tribunal before formally entering the circuit court process. The injured party’s case has to be approved by a tribunal primarily made up of members of the medical community. In its creation of these panels, the Massachusetts legislature set limits on what is considered in this forum. The legislature did not want to recreate the entire litigation process. To ensure that an injured party is filing a serious claim, the Commonwealth also requires the plaintiff to post a bond. To assist injured plaintiffs who are unable to pay, the legislature does allow the plaintiff to apply for a waiver of the bond and fees.Tied in a Knot The question of what is excluded and what is required in a medical malpractice tribunal review is found in a recent appellate decision (16-P-954).

In this case, the plaintiff alleged an out-patient addiction treatment center was negligent by failing to appropriately address his complaints of pain. Along with the filing of the case, the injured party filed an affidavit of indigency, asking the court to waive the filing fees. The injured party also sought funds to retain an expert witness to help with his action. The request for the expert funds was separate from the other motions, and it was not accompanied by its own motion or an explanation about the necessity of these fees.

For the tribunal, the injured man only submitted two handwritten pages with his allegations written out. These were not supported by a medical expert’s report. Without the affidavit of a medical expert supporting his claim, the tribunal ordered the plaintiff to post the statutory $6,000 bond. The injured man moved for a reduction, which was granted at $2,500. However, the injured man did not pay the reduced amount. The treatment center moved for a dismissal of the complaint, which was granted. The injured man appealed.

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In a recent case (15-P-1563), the Massachusetts Appeals Court reviewed a wrongful death lawsuit filed by the estate of a deceased infant, alleging the health care providers negligently performed their duties and led to the death of the infant. The case went to trial, ending with a verdict for the defendants. The estate appealed, claiming errors in the evidentiary rulings made by the judge.  Holding handsUpon review, the appellate court declined to overturn the decision, providing insight into what must be shown by an injured party to successfully pursue a wrongful death action.

The central question in this medical malpractice case was whether or not the providers were negligent by failing to recognize the baby’s heart monitor tracings were too slow, requiring a cesarean section. The defendants argued at trial that the tracings indicated a reassuring heart rate and that the cesarean was performed when the dilation failed to progress beyond nine centimeters. The estate pointed to the missing original, contemporaneous paper tracings, arguing that the copies in evidence did not have any handwritten notations of the defendants, so it was difficult to tell whether the doctors noted a reassuring or non-reassuring heart rate during the mother’s labor. The estate argued that the post-delivery care provider notations referred to a non-reassuring fetal heart rate as the reason for the c-section. The defendants countered that the notations could have been post-delivery assumptions, based on the near-lifeless state of the child upon delivery.

The estate entered into evidence copies of the post-delivery medical providers but did not call any of them as witnesses during trial. The defendants argued the lack of witnesses necessitated a missing witness instruction, which the trial judge denied. However, at argument, the defendants asserted that the estate did not present evidence that the post-delivery care providers actually examined the records of the heart tracings made at the time of delivery. The estate felt the judge allowed this argument in error and made it a focal point of the appeal.

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Massachusetts limits the time in which an injured party can file suit against a defendant. For most personal injury actions, the case must commence within three years after the cause of action accrues. This is known as the statute of limitations. This time begins when the date of the injury occurred or when the injured person knew or should have known that the injury occurred. Massachusetts laws also limit the time for the latter in statutes of repose, which cap the time to file a case.  Disabled tagThe primary example of this can be found within the medical malpractice statute, G. L. c. 231, § 60D. This statute allows a minor under six years of age to file suit past the three-year period, as long as it is before the child’s ninth birthday and within seven years. For instance, a child may discover that an accident at 18 months of age caused delayed injuries. This child can still file suit past the age of 4 1/2 years old but must file suit within seven years, even though the child will not quite be nine years old.

In a recent case (16-P-299), a father and next friend fought a trial court’s ruling dismissing his medical malpractice claim against three defendants for injuries to his child at birth. The court determined the claims were time-barred by G. L. c. 231, § 60D. The child was born on October 12, 2006, and the initial action was filed on December 26, 2012. On September 17, 2013, the father sought to add three health care provider defendants to the original defendants. The new set filed a motion to dismiss, which was granted, and the father appealed.

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In a medical malpractice action, it is essential to have proper medical experts. Medical experts help show the defendant medical provider failed to meet the standard of care for that particular specialty. The Appeals Court recently issued a decision, Russo v. Fisher (15-P-1264), which reviews whether or not a summary judgment was appropriate in a medical malpractice action. The patient alleged that the defendants failed to diagnose his subdural hematoma in April 2011, which was diagnosed a month later. X-ray of spineThe appellate court looked at whether or not the injured patient provided enough evidence through an expert witness to show that the emergency room physicians did not meet the standard of care.

The injury occurred after the patient carried a large bathtub up the stairs in February 2011. He suffered neck pain soon afterward. Twice in March and once at the end of April, the injured man came to the same emergency room and was seen by three doctors. Each time, he complained of neck pain. On the second visit, an x-ray was taken of his cervical spine, and it showed a normal result. He was diagnosed with torticollis (known as “twisted neck”), paracervical strain, and cervical strain. Each time, he was prescribed medications and noted to not have neurological deficits.

The injured man then went to a primary care physician in May. No neurological deficits were found in the first visit, but the injured man was diagnosed with a neck spasm. On the second visit, less than a week later, the injured man complained of neck pain radiating to the head and changes in personality. The doctor ordered a CT scan and referred the injured man to neurology. Twelve days later, the CT scan revealed a subdural hematoma, which resulted in a craniotomy and a follow-up surgery for an infection.

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In personal injury lawsuits, claims must be filed within a certain time limit set by law. Most must be brought within three years of when the date of the cause of action accrues or arises. The time begins to run when the injured party knew or should have known that he or she was harmed by the defendant’s conduct. In a recent Supreme Judicial Court opinion, Parr vs. Rosenthal (SJC-12014), the court formally adopted the “continuing treatment doctrine” for medical malpractice claims. Under this doctrine, the statute of limitations does not begin when the allegedly negligent physician continues to treat the patient for the same or a related condition. The idea behind the doctrine is to encourage recovery rather than litigation by promoting the doctor-patient relationship for conditions that require ongoing treatment.

In this case, the injured person was a boy born with a large lump on the back of his right calf. A team of doctors examined the lump and diagnosed it as a desmoid tumor, a benign tumor that can grow in a way that would hamper the normal growth of tissues and bodily functions.  prosthetic leg For this patient, the tumor had already caused an abnormality in his gait. The team approached the defendant doctor to perform Radio Frequency Ablation (RFA) to remove the tumor. This process uses a long probe with heating tines that burn the tumor in a spherical area immediately surrounding the tines, but it does not distinguish between healthy and unhealthy tissue. The doctor is known as the “inventor” of this process, and he is considered a leader in the field. However, the defendant doctor had not performed this procedure on this type of mass prior to the date of the surgery.

Immediately before the procedure on November 4, 2005, the doctor did not explain the risks associated with the surgery to the parents, particularly the risks of burns to the skin.During the procedure, the doctor discovered he had burned more than the planned treatment area. The defendant doctor stopped the procedure and told the parents of the burn, but he assured them their child would “recover and be fine.” The boy did not recover, his nerves destroyed by the burn. Eventually, the child’s leg was amputated below the knee on March 20, 2006, due to continued problems with the burn. Even then, a second amputation became necessary on March 12, 2008, due to continued infections and insufficient muscles for a prosthesis. A little over a year later, on March 6, 2009, the parents filed suit. At trial, the injured boy proposed jury instructions that the statute of limitations did not begin until the treatment by the defendant doctor or the team of doctors was terminated. The judge declined to give such instructions, and the jury returned a verdict in favor of the defendant doctor, concluding that the injured person knew or should have known about the injury before March 6, 2006.

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In any civil lawsuit, the plaintiff must ensure the at-fault party or parties receive notice of the claim so that they can appropriately respond. In Massachusetts medical malpractice actions, the General Laws specifically require that an injured patient or estate give written notice to a provider of health care 182 days before the case begins. (See G. L. c. 231, § 60L.) notice boardThe claim must include the factual basis for the claim, the standard of care alleged by the claimant, the breach of the standard of care, the course of action that should have been taken, how the breach injured the patient, and the names of all the health care providers that the injured person intends to sue.

In the recent decision of Arsenault vs. Battacharya (15-P-197), the Massachusetts Appeals Court looked at whether or not dismissal without prejudice was too harsh a remedy when an injured party failed to provide notice in accordance with G. L. c. 231, § 60L. In this case, the injured patient went to her general practitioner, the defendant in this case, for carpal tunnel in her wrists. The primary care physician injected her wrists with cortisone, with two separate injections on each wrist over three visits. Later, after surgeries on both wrists, she discovered that the tendon ruptures were caused by cortisone injections.

The filed complaint alleged that the doctor should have known that multiple cortisone shots would increase the risk of rupture to her wrists. The knowledge this was a possibility can be seen in a letter written by the doctor for the injured person’s workers’ compensation claim. The injured patient alleged that she became totally and permanently injured as a result of the negligently administered cortisone shots. The claim was filed nearly six years after the first injection to one of her wrists but within three years of the start of the statute of limitations, which began when she was told by an Independent Medical Examiner that her ruptures were caused by the shots. The defendant doctor moved for dismissal, alleging non-compliance with G. L. c. 231, § 60L, and the motion was granted by the trial court.
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Soon after a lengthy personal injury trial, the unsuccessful party can move for a Judgment Notwithstanding the Verdict and for a new trial, claiming that the evidence did not support the verdict handed down by the jury. This occurred in a recently issued Massachusetts Appeals Court decision, Ellis vs. Peter Clarke (15-P-868), in which the defendant doctor, an emergency radiologist, appealed a jury verdict in favor of the estate of a now-deceased patient. In this appeal, the defendant physician challenged the use of a witness and the conclusions drawn by the jury based on the evidence presented that his actions led to the death of the patient and grantor of the estate.

chest x-rayThe defendant radiologist argued that the estate did not use an appropriate witness who was a standard radiologist, rather than an emergency radiologist. The appellate court listed several cites from case law, which has established the standards for a medical expert. A medical expert may be utilized to testify about many things, including the appropriate standard of care for a patient with the health issues around which the litigation centers. Massachusetts case law has specifically addressed that the expert does not have to be a specialist in the area concerned. The medical expert witness just needs to have the sufficient education, training, experience, and familiarity with the main subject matter of the testimony. The trial judge made a prior determination that the estate’s medical expert was qualified based on his experience reading chest x-rays from ERs, alongside his training and education.

The radiologist also questioned the judge’s ruling determining that the estate did not have to produce evidence showing the diagnosis of cancer should have been made by a certain date. The appellate court did not think a date was necessary, particularly since the law presumes that any warning, if given, will be heeded. In this case, the expert witness stated that the deceased patient would have had a greater chance of survival if the appropriate care had been used and she had been warned.
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