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Articles Posted in Medical malpractice

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.

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.

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.

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.