Articles Posted in Medical malpractice

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Many personal injury suits in Massachusetts are filed within the Commonwealth’s court system. Some lawsuits end up in federal court if a violation of a federal law or regulation occurs, or if one or more of the parties involved in litigation reside or conduct business in another state. The injured party would likely argue that his or her state is the most appropriate place for the litigation to unfold. Federal District Court cases from Massachusetts are heard in the First Circuit Court of Appeals, which also includes the district courts of Maine, New Hampshire, Puerto Rico, and Rhode Island. Any published decisions from the First Circuit are binding and instructive on similar matters arising from any and all districts.

A recent case arising from the District of Puerto Rico, Rosa-Rivera v. Dorado Health, Inc. (No. 13-1328) reviewed a jury award to an injured baby and his parents, after he received negligent care in the hospital by the doctors and staff. In this case, the parents, acting on their own behalf and on behalf of their son, alleged that the hospital and the obstetricians who delivered him were negligent and caused him to suffer trauma, shoulder dystocia, and ultimately paralysis of the arm. The parents took the matter to trial, and the jury found both the defendant doctors to be negligent, but only one was responsible for causing the injuries. The jury awarded the family $807,500. Dissatisfied with the verdict, the family sought a new trial but was denied by the district court. The family alleged several procedural errors during the trial to the district and circuit courts, but they were denied a new trial in both courts. The family argued that the trial judge erred in not allowing their attorney to ask a nurse at the defendant hospital leading questions. They also claimed that the judge should have used one of the proposed jury instructions offered by their attorney and that the jury gave an inconsistent verdict.
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In a recent decision, Boudreault v. Nine (14-P-359), a medical malpractice decision in favor of a radiologist was overturned by the Superior Court of Massachusetts. In this case, it was alleged that the doctor failed to properly interpret the patient’s mammogram results and recommend the necessary treatments. The injured woman was seen for her annual mammogram and had abnormal results. There was a a well-defined nodule in one of her breasts, and the treating physician at the time recommended an ultrasound, spot compression mammograms of both breasts, and magnification mammograms of the affected breast. The patient followed up with the recommendation and returned for a diagnostic mammogram ultrasound. In that appointment, new micro calcifications were found that were noted but determined not to be worrisome.

At that time, no additional recommendations were made other than to return in six months. The injured woman complied, but she saw a different radiologist during this report. This doctor, the defendant in this appeal, reported that there wasn’t any evidence of a dominant mass, and that the calcifications noted before had not significantly changed and were “likely benign.” The doctor did not recommend any further biopsies or MRIs. He did recommend continued surveillance and another follow-up in six months to assure “interval stability.” The doctor felt that the woman remained in category 3. The injured woman missed her appointment, even though staff tried to reach her and remind her of the appointment. One year after her third visit with the defendant doctor, the injured woman returned for her follow-up mammogram. At this appointment, the doctor found that her breasts were highly suspicious for malignancy. She underwent other tests, and a biopsy revealed she had invasive ductal carcinoma. The injured woman had to undergo a radical mastectomy and chemotherapy soon after the diagnosis.
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Massachusetts General Laws G.L. C. 176D and G.L. C. 93A are designed to help protect the citizens of the Commonwealth from unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. An injured party has a right to file a claim against the insurer of the at-fault party if they “fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” The Court of Appeals recently allowed a group of injured plaintiffs in a medical malpractice suit (Conry vs. Reilly, 14-P-506) to add claims against the insurer of one of the defendant doctors. They alleged that the insurer failed to make the reasonable settlement offer after liability had become reasonably clear during the course of litigation.

The insurer moved to dismiss, but the trial judge allowed the plaintiffs’ motion to proceed. The insurer appealed, but the Court of Appeals upheld the lower court’s decision to allow the injured parties’ motion to add the insurer The Court of Appeals looked to Chiulli v. Liberty Mut. Ins., Inc., 87 Mass. App. Ct. 229, 232 (2015). In this case, a man was severely injured in a fight outside of a restaurant, suffering a skull fracture and remaining in a coma for almost three months. The staff testified that they sensed a fight would happen between two groups at the bar, but they had not been trained on safety rules and did nothing to prevent the fight from happening.

Prior to the suit, the injured man sent a demand letter to the insurer of the restaurant with a copy of the receipts for medical expenses. The injured person argued that at least the medical expenses were provable through the receipts, but the amount of earning capacity was disputed, within estimates ranging from $413,532 to $1,589,949. That meant there was an undisputed amount of damages in the amount of $1,075,460. However, the insurer only offered to settle for $150,000. The injured person won a jury award of nearly $4.5 million dollars against the restaurant, and the case settled amongst post-trial motions.
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Medical malpractice actions follow the same outline as other personal injury suits. If someone fails to uphold a duty under law and an injury occurs as a result, the at-fault party is liable to the injured party for the damages he or she sustained. In medical malpractice actions, this duty is called the “standard of care,” which is the typical practices and procedures performed by professionals in the same area of medicine in the same geographic area. In malpractice actions, the standard of care must be testified to by a qualified expert who practices in the same area of medicine.

In an unpublished decision, Distasio vs. Comeau (13-P-1572), the Appeals Court reviewed the dismissal of the injured party’s complaint following the trial judge’s ruling to exclude one of her expert witnesses. The injured party was a child who suffered from dislocated hips that likely dated back to her birth. The girl’s parents had asked the pediatrician about their daughter’s crawl and walk, but the pediatrician assured them that her crawl was normal, even though it was different from her older brother’s gait. No X-rays were ordered by the pediatrician, nor was a diagnosis provided.

The parents then sought another opinion, conferring with two doctors. One prescribed physical therapy, which began soon after the initial consultation. The child began to see a physical therapist, who was also a chiropractor, three times a week. The child was not X-rayed until her third visit with one of the initial consulting doctors, which was when she was diagnosed with hip dysplasia. The parents filed suit on her behalf against the pediatrician and the pediatric practice for failing to diagnose their daughter’s condition. They later amended the complaint to include the doctors from the initial second-opinion consultation, the physical therapist, and the practice that provided the physical therapy.
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Massachusetts medical malpractice claims must be reviewed by a tribunal before they are allowed to proceed in the civil court system. During this review, the tribunal is made up of a superior court judge, an attorney, and a Massachusetts-licensed healthcare provider who practices in the same field of medicine in which the alleged injury occurred. The healthcare provider is often a medical doctor, but can also be a nurse, physical therapist, or pharmacist. This group asks whether there is enough evidence to present a medical malpractice claim in front of a jury. If the tribunal finds against the plaintiff, the plaintiff can appeal the denial of the claim to the Appeals Court of Massachusetts.

In Normand vs. Cambria, the injured patient filed a medical malpractice action against two doctors. The tribunal allowed suit against one of the doctors, but felt there was not enough proof against the other to move forward. The injured patient sought treatment for a thoracoabdominal aortic aneurysm. The injured patient was treated by a surgeon and an attending physician who provided follow-up care to the injured patient. During the procedure, a device was installed in the patient to drain the spinal fluid to encourage blood flow to the spinal cord and decrease pressure from the fluid.

The injured patient’s expert testified that the drain was removed prematurely, resulting in the injured spinal cord ischemia, partial paralysis, and neurogenic bladder. The expert stated that the drain should have remained in no less than 72 hours after the surgery. The removal of the drain under 48 hours formed the basis of the injured party’s allegation that this was below the acceptable standard of care.
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Personal injury suits in Massachusetts that involve cancer are typically medical malpractice actions that involve a misdiagnosis or negligent care. One specific type of cancer, mesothelioma, has a unique status due to the history of employees suffering negligent and reckless asbestos exposure at the hands of their employer or a business owner. Usually those affected were employed in the construction industry or by a company that manufactures products often used in the construction business. Over the last several decades, several civil actions have been filed for those who have suffered from asbestos-related diseases. Recently, the First Circuit Court of Appeals released a precedential opinion in February that upheld a lower court’s dismissal of a suit filed by a trust that was created to assist injured employees’ claims after an asbestos-manufacturing company went into bankruptcy.

In Barraford v. Lydon, the First Circuit addressed a set of claims filed by a trust created as part of an asbestos manufacturer’s bankruptcy plan. While most companies have their liabilities discharged upon plan confirmation, the liability for the company’s asbestos exposure suits remained. The trust was formed to act as an agent for those injured by the exposure. The trust brought a suit on behalf of a group of injured employees, nearly 10 years after the claim accrued. The company claimed that the statute of limitations had run on the collective claims and moved for dismissal of the case.
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To pursue a medical malpractice action in Massachusetts, an injured patient must show that there was a failure to use the generally accepted practices and procedures of a specific disease or disorder, commonly used by medical professionals in the same area of medicine, during his or her treatment. This is usually described as a breach in the standard of care. When filing a medical malpractice action, the injured patient must submit her or his case to the Medical Malpractice Tribunal (MMT) for review, so it can determine whether or not there is enough substantiated evidence to bring a case before a jury or judge. This can include testimony from a qualified expert, who attests to whether or not the standard of care was breached.

In Washington vs. Cranmer, the injured patient went to an emergency room for various symptoms. The 37-year-old woman complained of body weakness, left arm weakness, dizziness, high blood sugars, and blurry vision. The injured patient already had a history of diabetes, chronic hypertension, and high cholesterol, and she presented upon arrival with slow responses, high blood pressure, and difficulty walking. She was examined, treated, and released by an E.R. doctor, who determined that she was alert, able to walk and move, and oriented. The E.R. doctor prescribed blood pressure medicine after the injured patient revealed she had not taken her medicine that morning. A CT scan was conducted, which did not reveal any abnormalities. An MRI was additionally ordered so that the E.R. doctor could better determine her condition. The injured patient was claustrophobic and ultimately did not go through with the MRI, and she had elevated blood pressure. Despite the lack of test results to make a determination, the injured patient was discharged with instructions to return if she suffered any additional problems.

After her release, the injured patient suffered a stroke overnight, and she now has permanent neurological damage. The woman filed her medical malpractice action in the Massachusetts Superior Court and submitted it to the MMT for review, as required, but did not post the $6,000. The MMT concluded that the proof was insufficient to bring a legitimate question of liability in front of a fact-finder and dismissed for the lack of the statutorily mandated bond.
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In Massachusetts, when a medical malpractice action is filed in court, the case must be submitted to the Massachusetts Medical Malpractice Tribunal (MMT) for review. The MMT was established in the mid-1970s, and it does not apply to those who present claims in a letter addressed to the healthcare provider. The tribunal has one superior court judge, an attorney, and a Massachusetts-licensed healthcare provider. The provider is often a physician but can be a nurse, pharmacist, or physical therapist; and he or she must be a provider that works in the same medical specialty in which the alleged injury occurred.

Tribunals ask the question of whether or not the injured person or the deceased person’s estate has enough properly substantiated evidence to bring a case before a jury. A statement from an expert stating the standard of care was breached and caused injury to the patient must be included. The MMT reviews medical, hospital, and office records to make a determination. If two of the three panelists agree with the injured patient, the case can proceed. If the MMT agrees with the defendant hospital or physician, a bond has to be posted to proceed.

In a Massachusetts case, Thou v. Russo, the Appeals Court reviewed an appeal from a dismissed malpractice action. The deceased patient suffered a heart attack after liposuction and abdominoplasty procedures. The injured patient’s estate filed suit against the anesthesiologist, who used a solution containing lidocaine and epinephrine delivered through “several small stab incisions” in the areas to be suctioned. During the surgery, the patient’s blood pressure dropped, and emergency procedures were performed for an hour and a half. The patient became stable for an hour and a half but eventually went into cardiac arrest.
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