Articles Posted in Medical malpractice

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In most Massachusetts personal injury cases, the injured party is free to pursue damages from the party that caused his or her harm, as long as certain procedural requirements are met. In cases in which the person that caused the alleged harm is an employee of the federal government, however, pursuing a claim can be more difficult, due to immunities provided to the government. There are waivers to the immunities set forth by the Federal Tort Claims Act (FTCA), that allow a plaintiff to pursue a claim.

The United States District Court for the District of Massachusetts recently discussed the timeliness of a claim under the FTCA in a case in which the plaintiff sought damages from the United States of America due to the negligence of a government physician. If you live in Massachusetts and you or a loved one suffered harm due to the acts of an employee of the federal government, you should speak with a capable Massachusetts personal injury attorney to discuss the facts of your case.

It is alleged that the plaintiff underwent treatment for amphetamine addiction in 2011. He successfully completed treatment and remained clean through July 2012. In August 2012, the plaintiff began treating with the defendant doctor, who is a government physician. The plaintiff’s medical records indicated he was recovering from an amphetamine addiction and plaintiff’s mother advised the defendant doctor of the plaintiff’s addiction. The defendant doctor nonetheless prescribed the plaintiff several amphetamine-based medications.

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In Massachusetts, medical malpractice cases are handled differently than other civil lawsuits, in that the plaintiff must first present evidence of the defendant’s malpractice to a tribunal which will determine if the plaintiff has proffered sufficient evidence of liability to allow a case to proceed. Recently, the Appeals Court of Massachusetts explained the tribunal’s role and standards in evaluating the evidence submitted by a plaintiff’s expert, in a case in which it reversed a dismissal of the plaintiff’s malpractice case. If you or a loved one suffered injuries or an illness because of negligent medical care you should speak with a seasoned Massachusetts personal injury attorney regarding whether you may be able to recover compensation from the negligent care provider.

Facts Regarding the Plaintiff’s Decedent’s Treatment

Reportedly, the plaintiff’s decedent presented to the hospital when she was in labor. She underwent an emergency cesarean section and emergency hysterectomy. She died twenty-five hours later due to hemorrhagic shock and amniotic embolism. Her husband subsequently filed a wrongful death lawsuit alleging that the defendant doctors committed medical malpractice which resulted in the decedent’s death. A hearing was held in front of a medical malpractice tribunal, after which the tribunal found the evidence offered by the plaintiff failed to establish the defendant’s liability. Thus, the tribunal dismissed the plaintiff’s case after which the plaintiff appealed.

The Tribunal’s Role in Evaluating Evidence of Medical Malpractice

Under Massachusetts law, a plaintiff’s offer of proof of medical malpractice is sufficient if there is evidence that the defendant is a health care provider who did not conform to good medical practice, and the plaintiff suffered damages as a result. However, the tribunal should not assess credibility or weigh the strength of the evidence. Rather, it merely must determine whether, if the plaintiff’s evidence is properly substantiated, it is sufficient to raise a legitimate question of liability. The evidence is to be viewed in a light most favorable to the plaintiff. Similarly, the standard for admission of expert testimony at the tribunal level is very lenient. Thus, a fact-based opinion by a qualified expert that the defendant committed malpractice is sufficient.
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In medical malpractice cases, as in all civil claims, the plaintiff must set forth appropriate facts to raise a question of liability as to the defendant medical care providers. Unlike other civil cases, however, the sufficiency of the evidence set forth in a medical malpractice lawsuit is assessed by a tribunal before the plaintiff is allowed to proceed with his or her claim.

Recently, a Massachusetts appellate court reviewed the standard for evaluating whether a plaintiff’s evidence in a medical malpractice case is adequate, in a case in which the plaintiff’s claims were dismissed by the tribunal. If you were harmed by negligent medical care, it is important to retain a skilled Massachusetts personal injury attorney to represent you in your pursuit of compensation, to provide you with a good chance of a favorable outcome under the circumstances.

The Plaintiff’s Lawsuit Against the Defendants

The plaintiff filed a medical malpractice lawsuit against four physicians and a hospital, reportedly arising out of the care provided to her husband. Upon review, the tribunal found that there was insufficient evidence to raise an issue of fact as to liability as to all of the defendants, and dismissed the plaintiff’s claims. The plaintiff appealed.

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No matter how strong a plaintiff’s case, if he or she fails to file a lawsuit within the time period set forth by the applicable statute of limitations, he or she may be precluded from pursuing a claim. While there are some exceptions to the statutory limitations period they only apply in certain circumstances.  This was illustrated in Mendonca v. Walcott, a case in which the trial court dismissed the plaintiff’s medical malpractice case due to the plaintiff’s failure to file within the three-year time period set forth by the applicable statute of limitations. If you or a loved one were injured due to negligent medical care, you should consult a knowledgeable Massachusetts personal injury attorney to analyze the facts of your case and to assess whether you may be able to recover damages.

Facts Regarding the Plaintiff’s Treatment

Allegedly, the plaintiff began treatment with the defendant pediatrician when the plaintiff was 10 years old. When the plaintiff first began treating with the defendant in 2008, it was noted she was remarkably small for her age. In 2009, when she was 11 years old, the plaintiff complained of swollen glands in her neck, for which she was prescribed antibiotics. Later that year during her physical examination, it was again noted that she was very small for her age. The defendant did not examine the plaintiff’s neck during her physical. In 2011, it was noted the plaintiff was in the 5th percentile for her height and 1st for her weight.

Reportedly, on one occasion the plaintiff complained of various concerns and her neck was examined but no abnormality was noted, even though a photograph that was taken at that time depicted visible swelling in the neck. The plaintiff returned with complaints of a lump in her throat in the winter of 2011 and was examined by a nurse practitioner, who noted that the plaintiff’s thyroid felt enlarged. The plaintiff subsequently underwent a biopsy in January of 2012 and was diagnosed with thyroid cancer. The plaintiff filed a medical malpractice lawsuit against the defendant in August 2015. The defendant filed a motion for summary judgment, arguing that the plaintiff failed to file the lawsuit within the applicable statute of limitations.

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Under Massachusetts law, hearsay is not admissible testimony at a trial. There are exceptions to this rule, however, which allow certain testimony that is considered hearsay to be admitted. The Appeals Court of Massachusetts recently held in Hasouris v. Sorour, a medical malpractice action, that a witness’s deposition testimony can be used at a trial under the prior recorded testimony to the rule against hearsay, due to the witness’s refusal to testify. If you or a loved one suffered injuries due to medical malpractice, you should retain a personal injury attorney seasoned in handling Massachusetts medical malpractice cases to pursue your claim, to ensure all relevant testimony and evidence that will support your case is obtained and preserved.

In Hasouris, Plaintiff sued Defendants for medical malpractice and wrongful death, alleging negligent medical care provided by physicians during Plaintiff’s wife’s knee replacement surgery, which resulted in pain and suffering and Plaintiff’s wife’s ultimate death. A Doctor involved in Plaintiff’s wife’s care was deposed. The Doctor was then indicted for Medicare fraud. Doctor filed a motion to stay and bifurcate the trial and set forth his intent not to testify at the trial by invoking his privilege against self-incrimination. His motion was denied. A Second Doctor filed a notice of his intent to use Doctor’s deposition testimony at trial, due to Doctor’s unavailability, arguing that it fell under the prior recorded testimony exception to the rule prohibiting hearsay. Doctor settled prior to trial, and stated he would not appear at the trial. The judge advised the parties if Doctor did not appear at trial he would admit Doctor’s deposition testimony. Plaintiff made objections to certain portions of the deposition transcript, which were sustained in part. A jury found in favor of Second Doctor, and Plaintiff filed a motion for a new trial. The judge denied Plaintiff’s motion and Plaintiff appealed.

On appeal, Plaintiff argued the judge erred in admitting Doctor’s deposition testimony. The court noted the trial court judge relied on the exception to the rule against hearsay that permitted prior recorded testimony of a witness that is unavailable to be admitted into evidence. The court noted that the issue in the subject case was whether the witness was truly unavailable due to his refusal to testify by invoking his right against self-incrimination. The court noted a witness asserting the right against self-incrimination cannot be forced to testify unless it can be proven the testimony will not be incriminating. In analyzing whether the testimony sought will be incriminating, the court must consider what information will be sought and whether the answers may incriminate the witness. This inquiry was not done in the subject case but the court found the invocation of the right to be valid regardless. Further, the court noted that the deposition testimony was admissible under the Massachusetts Rules of Civil Procedure, because Doctor’s attendance could not be procured for the trial, due to his refusal to comply with a subpoena to attend. As such, the court affirmed the trial court ruling.

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Under Massachusetts law, every medical malpractice lawsuit must undergo an initial review by a tribunal to determine if the plaintiff has a possibility of recovering. The tribunal consists of a judge, a physician, and an attorney. If upon review the tribunal determines the plaintiff has insufficient evidence to raise a question of liability, the plaintiff must then file a $6,000.00 bond secured by cash or its equivalent to proceed with his or her case. While in some cases the bond can be reduced, the requirement that plaintiffs file a bond cannot be eliminated. If the bond is not filed, the plaintiff’s case will be dismissed. An inadequate bond is grounds for dismissal as well, as the Supreme Court of Massachusetts recently decided in Polanco v. Sandor. If you believe you were injured due to medical malpractice in Massachusetts, it is essential to retain an experienced Massachusetts medical malpractice attorney to pursue your claim, and to ensure you do not waive any rights to recovery.

In Polanco, the plaintiff filed a medical malpractice lawsuit against three treatment providers. Following a review of the case, the medical malpractice tribunal determined the plaintiff’s evidence was insufficient to raise a question of fact regarding liability. Subsequently, to fulfill the bond requirement, the plaintiff filed a surety bond in the amount of $6,000.00, which he obtained for $120.00. The defendants then filed a motion to strike the surety bond and dismiss the Complaint, arguing the surety bond did not meet the statutory bond requirements. Defendants’ motion was granted. The judge then reported his ruling to the Court of Appeals. The case was subsequently transferred to the Supreme Court of Massachusetts under its own initiative.

The court noted that the $6,000.00 bond a plaintiff must pay if the tribunal finds there is insufficient evidence the defendant acted negligently is payable to the defendant in the event the plaintiff does not ultimately prevail in his or her action. The tribunal review and the bond requirement were instituted to reduce frivolous lawsuits against medical providers. Upon review of plaintiff’s surety bond, the court found that it failed to fulfill the bond requirement. The court stated that allowing the plaintiff to pursue his case after only paying $120.00, rather than the $6,000.00 required by law, would defeat the objective of the statutory requirement. Moreover, the court noted the plaintiff failed to set forth any argument in support of his position that the surety bond was adequate.

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People routinely entrust their health to medical providers with the expectation they will be provided with appropriate care. Unfortunately, at times, the medical treatment provided falls short of what is expected and actually results in harm to the patient. If treating providers fail to adhere to the standard of care imposed on them, they should be liable for any damages caused. The attorneys who defend doctors and hospitals in medical malpractice cases are often aggressive and will engage in several tactics to try to diminish any damages caused by their clients. The Massachusetts Court of Appeals recently held in Larkin v. Dedham Medical Associates, Inc., however, that a plaintiff’s future medical damages in a medical malpractice case are not entirely reliant on their past medical expenses. If you are pursuing a medical malpractice case in Massachusetts, it is important to have an aggressive Massachusetts medical malpractice attorney advocating on your behalf to enable you to recover the maximum damages possible.In Larkin, the plaintiff-wife was diagnosed by her primary care physician with a venous varix on the left side of her brain and an aneurysm on the right side of her brain. She underwent initial diagnostic testing at the direction of her physician, but he failed to order any follow-up testing. Additionally, when she became pregnant, he failed to report her brain abnormalities to her obstetrician. Due to the physical stress of giving birth to her child, the plaintiff-wife’s venous varix experienced an increase in intracranial pressure, and a clot formed. The plaintiff-wife subsequently suffered a stroke, which required extensive surgery and resulted in the permanent loss of her ability to walk or care for herself. She requires constant care, day and night, for the rest of her life.

The plaintiff-wife, along with her husband and child, sued her primary care physician and his practice group, seeking damages for pain and suffering, lost wages, past medical expenses, and future medical expenses. The plaintiff-husband also sought damages for loss of consortium. Following a jury trial, the plaintiffs were awarded $35.4 million, which included an award of $11 million for future medical expenses. The defendants filed multiple post-trial motions, arguing, among other things, that the plaintiffs’ counsel misrepresented the cost of the plaintiff-wife’s past medical bills, resulting in inflated future medical damages. The court denied the majority of the post-trial motions, and the defendants appealed. On appeal, the Massachusetts Court of Appeals affirmed.

Regarding the plaintiff-wife’s medical expenses, it was undisputed that the plaintiffs’ attorney misrepresented the plaintiff-wife’s past medical expenses as $4 million, when they were in fact $1,272,013.70. Following the trial, the judge rectified this error by reducing the verdict award for past medical expenses to reflect the actual amount. The defendants argued, however, that since the plaintiffs introduced limited evidence regarding future medical costs, the jury relied on the inflated amount of past medical expenses in awarding damages for the cost of future care, leading to an improper amount. The court disagreed with the defendants and sustained the future damages award. First, the court noted that an expert opinion is not required to prove future medical damages. The court also found the jury could have reasonably awarded $11 million in damages for future medical costs without relying on the misrepresentation, and it found that the trial court did not err in reducing the award only for past medical bills.

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The timing of when a civil action is filed can determine whether or not the lawsuit is heard at all in the civil justice system. Massachusetts General Laws dictate the period in which a Massachusetts medical malpractice action must be filed following an accident or injury. When the injury involves medical malpractice among a series of appointments, doctors, and care over a period of time, it can become very difficult to pinpoint whether the date an injury occurred was within the prescribed three-year period. Prior case law established it is not necessary the plaintiff knows the defendant was actually responsible for the injury, only that the medical care given by the defendant may have caused the injury.

This is seen in a recent Appeals Court decision (17-P-722), in which an injured patient and her husband were prevented from pursuing their negligence and loss of consortium claims against the treating physician and hospital providing medical care following a laparoscopic sigmoid colectomy. This patient suffered from medical abdominal issues prior to this procedure, and she sought treatment in 2012 after she was diagnosed with diverticulitis. Following the colectomy, her recovery was challenged by difficulties with the abdominal fluid drainage and a slow return to gastrointestinal function. She was discharged but returned a week later after experiencing chills, cramps, and emesis. The physician re-examined her and told her he believed she had a small bowel obstruction due to internal organ adhesions.

Eventually, she was transferred to a different hospital for care by a different surgeon. Tests taken at this location showed urine was leaking from her left ureter into her pelvis, which was likely caused by the prior procedure that severed her ureter. A special tube was required to drain urine from her left kidney. In the following month, she was seen again at the second hospital with infections from the tube. She had surgery the following March to repair the severed ureter into the bladder, and this operation confirmed the ureter had been severed during the initial surgery.

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The Appeals Court recently evaluated a Massachusetts wrongful death action precluded by the medical malpractice tribunal from moving forward in state court. The deceased in Appeals Court case number 16-P-1715 was admitted to a hospital for mental health treatment following the death of her premature twins. She asked to be discharged, and she was released three days later after an evaluation by a physician, who presented her with an after-care plan. The woman died the next day in a homeless shelter due to an overdose of multiple drugs. The deceased’s aunt and personal representative of the estate filed a wrongful death lawsuit, alleging the hospital and physician were negligent in their discharge of her niece.

Like all cases involving medical malpractice, this lawsuit went before the Commonwealth’s tribunal for assessment. The estate was required to show the hospital provided health care as defined by G. L. c. 231, § 60B, the hospital failed to provide care that’s expected of the average member of the profession practicing the same type of medicine, and the failure to meet the standard of care was more likely than not what caused the death. The tribunal determined the estate’s offered proof was insufficient to show these things, and the case was dismissed after the estate failed to post the statutory bond.

The estate offered the testimony of an expert witness as evidence the hospital did not follow the standard of care in its discharge of the deceased immediately before her death. Case law requires an expert to have sufficient training, experience, education, and familiarity with the subject matter of the testimony. The tribunal cannot weigh the evidence as a fact-finder, and neither can the reviewing appellate court. Both are required to view the evidence presented by the estate in the light most favorable to them.

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In Massachusetts, any medical malpractice action must be approved by a tribunal before it can be filed in civil court. The Massachusetts Appeals Court recently reversed a tribunal decision in 17-P-780, which prevented an estate from pursuing a Massachusetts medical malpractice lawsuit against the deceased’s primary care physician. For a 17-month period, the deceased sought care from his doctor several times for various symptoms. Some he experienced, like shortness of breath and chest tightness, are linked to heart disease. His physician offered diagnosis and treatment for other maladies but did not address or treat him for a heart-related condition. He also failed to refer him to a cardiologist.

The deceased patient was taken to an emergency room at the end of this period, experiencing a heart attack due to 100 percent blockage of his left anterior artery. He died soon afterward at the age of 46. His mother and personal representative filed a lawsuit against his treating physician for the patient’s death because of his failure to identify and address the heart disease in violation of the applicable standard of care.

The matter went before the medical tribunal, per G.L. c. 231, sec. 60B. The tribunal determined the proof was insufficient to raise a legitimate question of liability appropriate for judicial inquiry, even if it was substantiated. The estate was required to show the hospital was a provider of health care as defined by the General Laws, the hospital did not follow good medical practice, and the extent of damages suffered as a result of these actions. To see whether or not the physician at issue followed the standard of care, the tribunal looks at whether or not the care was what an average qualified physician in his or her area of specialty would provide. An injured party usually offers the opinion of a qualified medical physician to establish the standard of care.

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