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Articles Posted in Medical malpractice

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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You do not often see a criminal case intersecting with a Massachusetts personal injury action, but a recent medical malpractice decision issued by the Appeals Court shows how the former affects the latter. The original action was filed by the husband of the decedent, claiming the treating physicians and health care facility caused the death of his wife through their negligent care of her during her knee replacement surgery. Early on, the estate took the deposition of one of the anesthesiologists involved in the injured wife’s care. Soon afterward, this physician had his medical licenses revoked and was indicted for Medicare fraud. He then filed to bifurcate the civil trial and invoked his Fifth Amendment privilege against self-incrimination.

The other defendant anesthesiologist filed a notice of his intention to use parts of the other doctor’s deposition, since he would be unavailable. The anesthesiologist invoking his Constitutional privilege and the health care provider both settled with the estate, leaving the remaining anesthesiologist as the lone defendant. The judge denied the defendant doctor’s motion to use the deposition. At trial, the doctor invoking the privilege did not appear, and the judge allowed parts of the deposed testimony to be read during trial. The court allowed the defendant to read the part of the deposition in which the other doctor admitted his medical license was suspended in three states. The jury returned a verdict in favor of the remaining defendant anesthesiologist.

The Appeals Court noted the trial court relied on the exception to the evidentiary rule that allows hearsay evidence through prior recorded testimony when the witness is unavailable. To determine whether this exception can be applied, the court must determine the declarant is unavailable and evaluate whether the prior recorded statement was given in a proceeding that substantially addressed the same issues in the present proceeding, with similar opportunities for cross-examination. The appellate court agreed with the trial court’s assessment that the other anesthesiologist was unavailable. The Appeals Court determined the doctor unequivocally indicated his intent to assert his constitutional privilege against self-incrimination.

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It is vital to have aggressive, knowledgable Massachusetts personal injury counsel at your side after an accident. To obtain the damages you deserve, an attorney has to remain vigilant from the beginning of the lawsuit, throughout the discovery process, during trial, and even after a successful verdict. A recent medical malpractice case from the Commonwealth’s Appeals Court illustrates the need for assertive attorneys at your side for every part of the litigation process.

The injured patient in this lawsuit won a multi-million dollar verdict in a medical malpractice case against her physician, who failed to timely diagnose her stroke. The jury awarded $5 million, which was reduced to $4.05 million, since a co-defendant had previously provided a $950,000 settlement payment. Following the trial, the physician’s malpractice insurer chose to forgo post-trial motions and an appeal, settling the case for $3.75 million.

This amount was under the $4 million coverage limit of the policy, thus releasing the doctor from personal liability. However, the doctor was unsatisfied. The doctor claimed the insurer acted in bad faith when it settled without her permission. If the insurer had appealed the verdict, the injured person might not have been paid.

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. The 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.

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.  The 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.

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.  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. 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.  Upon 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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