When Bostonians are ill or injured, we put our trust in healthcare professionals. You naturally assume they will properly diagnose and treat the problem, but sometimes, things go wrong.
Nobody likes to think about the possibility of medical errors, but they are sadly common. According to Johns Hopkins, medical errors are the third leading cause of death in the U.S., resulting in 250,000 deaths a year or more.
Almost half of these errors are preventable. Medical malpractice is a complex area of the law. If you believe medical malpractice at a Boston care facility was responsible for your harm, you should contact an experienced Boston medical malpractice lawyer as soon as possible to discuss your legal options. At Dolman Law Group, we handle a full range of medical malpractice claims.
What Is Medical Malpractice?
Medical malpractice occurs when a doctor, hospital, or other health professional is negligent while performing their duties. As a result, the patient is injured. We expect healthcare professionals to meet the accepted standard of care. The accepted standard of care is the generally accepted practice used to treat patients suffering from a particular illness or injury.
The accepted standard of care depends on many factors, such as medical history, age, and general health. The injured person must show that the medical professional was negligent and that the negligence resulted in an injury. To do that, they must show the elements of medical malpractice, which are:
- Duty of care: Medical professionals owe their patients a “duty of care”. This means their legal duty is to provide them with competent medical care.
- Breach of duty: The court will determine if the defendant either did or did not do what a reasonably prudent person would do. If the defendant acted differently than what an average person in their position would do, they could be held liable for their patients' injuries.
- Causation: The plaintiff has to prove the medical professional's negligence was the cause of the injuries. It also has to be proven the defendant was aware that their negligence could have caused the injury. The medical professional may not be found liable if their actions caused an unforeseeable injury.
- Damages: This is monetary compensation the court requires someone to pay for injuring someone else.
If a medical care provider's negligence causes harm to a patient, malpractice may exist. However, malpractice does not necessarily exist because the treatment was unsuccessful or the patient experienced a bad outcome.
Common Types of Medical Malpractice in Boston
The five most frequent malpractice allegations arise from diagnosis (33 percent), surgery (23 percent), treatment (18 percent), obstetrics (10 percent), and medication or anesthesia (10 percent). Common types of malpractice include:
Misdiagnosis or Failure to Diagnose
Many medical malpractice lawsuits arise from a misdiagnosis, delayed diagnosis, or complete failure to diagnose an illness, injury, or medical condition. In fact, studies show that from 2013 to 2017, diagnostic errors were the largest source of medical malpractice claims accounting for 33 percent of all filed malpractice claims. An accurate diagnosis can be extremely challenging. Some symptoms are elusive or hard to identify.
Symptoms may mimic another condition. However, an accurate and timely diagnosis can be a matter of life and death. Without an accurate diagnosis, the patient may receive the wrong treatment, delayed treatment, or no treatment at all. Incorrect or unnecessary treatments can also leave the patient with huge medical bills. A misdiagnosis can happen when a physician fails to:
- Recognize clinical signs and symptoms.
- Order medical testing or seek additional information.
- Refer the patient to a specialist.
Other types of errors that can affect the identification of illness include:
- Mislabeled lab or test results.
- Lost test results.
- Errors when conducting a test or evaluating data.
Surgical errors are the second most common medical malpractice claim, with over 4,000 surgical errors occurring each year. All surgeries carry some risk, but common errors include:
- Foreign objects are left in a patient's body. Leaving objects, such as sponges or instruments, in the patient's body can cause severe pain, infections, and even death if untreated immediately.
- Operating on the wrong surgical site. Doctors may operate on the wrong location or body part. This can happen with kidney transplants or even amputations.
- Operating on the wrong patient. Doctors and the surgical staff must do a preoperative verification to make sure they perform the correct procedure on the correct person.
- Nerve damage. A slip of the scalpel can cause nerve damage.
- Anesthesia errors. Administering too little or too much medication can cause a patient to wake up in the middle of an operation, or suffer brain damage or even death.
Failure to Treat
Many malpractice lawsuits arise when the doctor or hospital fails to treat or stabilize a patient's condition properly. If a medical professional takes on a patient and fails to treat, they have violated the standards of care according to the Western Journal of Emergency Medicine. Some examples of failure to treat include:
- Failing to order appropriate medical tests.
- Neglecting to consider a patient's medical history when prescribing medicine or treatment.
- Releasing a patient too soon from the hospital.
- Failing to provide instructions for follow-up care.
Obstetrics and Childbirth Errors
OBGYNs have a higher rate of medical malpractice suits than any other type of doctor. Common birth injuries include cerebral palsy, facial paralysis, oxygen deprivation, brachial palsy, cervical dystonia, perinatal asphyxia, fractured collarbones, and spinal cord injuries. Injuries may happen during pregnancy, in the course of delivery, or just after delivery, including injuries caused by trauma (such as nerve damage or broken bones.) Some childbirth errors affect both the mother and the infant.
Studies estimate that 7,000 to 9,000 patients die every year from medication errors, such as:
- Prescribing the wrong medication.
- Prescribing the wrong dose of medication.
- Failing to check whether the patient is allergic to that medication.
- Failing to check whether there are other medications the patient takes that could interact with the prescribed drug.
- Failing to include a necessary part of the prescription.
- Telling the patient to take the prescription at the wrong time of day.
- Transcribing the prescription incorrectly.
Anesthesia errors often happen in the operating room, but they also happen in the recovery room or while sedating a patient for outpatient procedures or dental work.
Emergency Room Errors
Emergency rooms are often tense and fast-paced. Both the patient and the medical staff are under stress. The situation may give rise to errors in testing, diagnosis, and treatment. Sometimes doctors release patients who they should have admitted to the hospital.
Hospital-acquired infections, or HAI, are infections that patients get while undergoing surgery or receiving medical treatment. Bacteria, fungi, viruses, or other pathogens can cause HAIs. According to a Massachusetts Health Care Report, one in twenty-five hospital patients acquire a healthcare-associated infection.
HAIs can happen in any type of health care facility, including hospitals, nursing homes, ambulatory surgical centers, or end-stage renal disease facilities. Healthcare professionals use many precautions to reduce the chance of infection, but they still happen.
Who Is Responsible for Medical Malpractice?
Many people associate medical malpractice with medical doctors, nurses, and physical therapists. However, medical professionals such as psychiatrists, osteopaths, chiropractors, podiatrists, dentists, optometrists, and others.
Even if a doctor orders the right tests, radiologists may be liable if they misinterpret test results. A pharmacist may be held accountable for incorrectly filling a prescription with the wrong medication or dosage and harming the patient.
The “Offer of Proof” Requirement for Massachusetts Medical Malpractice Claims
In Massachusetts, medical malpractice plaintiffs must first present an offer of proof. The plaintiff, usually through their attorney, appears before a three-personal tribunal that will determine whether the plaintiff's evidence is sufficient to raise a legitimate question of the defendant's liability for the plaintiff's alleged harm. There are three members of the tribunal:
- One justice of the Massachusetts Superior Court
- An attorney licensed to practice law in the Commonwealth of Massachusetts
- A licensed physician, selected by the justice is also involved. The physician must practice in the same field of medicine that applies in the case. If the defendant is not a doctor, the justice will choose a care provider who works in the same field of medicine that applies to the plaintiff's case.
If the tribunal finds for the defendant, which means the plaintiff did not establish sufficient evidence of liability, the plaintiff cannot proceed with the lawsuit unless they file a bond of at least $6,000 with the court. If the tribunal finds sufficient evidence to raise a legitimate question of liability, the case proceeds to court, like any other civil lawsuit.
After the Tribunal
From there, the case will proceed like other personal injury cases. Typically, you will need to have expert witness testimony to prove a medical malpractice case. If parties do not reach a settlement agreement, there will be a jury trial. It usually takes several years to reach trial.
How Do You Know If You Are a Victim of Boston Medical Malpractice?
You may know that something is terribly wrong, but you are not sure what or why. If you believe your health care provider was negligent, ask yourself these questions:
- Was there a delay in my diagnosis? Many untreated health conditions get worse over time. If your doctor did not diagnose and treat you promptly, you might be suffering the consequences.
- Was there an error in my diagnosis? Perhaps your doctor diagnosed the wrong condition or even told you there was nothing wrong when there actually was. Misdiagnoses mean your treatment may have been delayed, improper, or otherwise neglected.
- Was my treatment the most appropriate and up-to-date treatment available? Physicians and other healthcare providers may use old or outdated treatments because they have not kept up with developments in the field.
- Did my doctor advise me about all known risks? You are entitled to make an informed decision about your care. To do this, your doctor must tell you about the benefits, risks, and possible alternatives. If you had known all the pertinent information, would you have chosen differently?
- Did my healthcare provider make a mistake when performing a procedure? Everyone makes mistakes, but medical mistakes can be catastrophic.
Trust your healthcare professionals, but remain proactive about your health care. Learn as much as possible about your health condition and any upcoming procedures. Document your symptoms. Bring lists of questions to appointments. Get another opinion whenever you need one. Don't allow yourself to be intimidated by the medical system.
If You Were a Victim of Medical Malpractice in Boston
- Document everything. If you are ill or injured and are concerned about your care, you may feel nervous and stressed. Under the circumstances, you may forget important details. You should document dates, times, names of doctors and nurses, medications, dosages, and treatments. Try to keep regular notes because it can be difficult to record too much after time has passed. You may think you are keeping too much information, but you never know when a detail may be important. It may also help reduce your stress.
- Ask questions. People are often intimidated by the medical system. However, do not be afraid to ask questions. Be as persistent as necessary because you have a right to the answers.
- Request a copy of your medical records. You are entitled to a copy of your own medical records, including any x-rays. When requesting copies, no explanation is necessary. You do not need to explain that you are considering a lawsuit. Once you have your records, review them to make sure they are complete. Again, you may have to be persistent to get records from both doctor's offices and hospitals.
- Call a Boston medical malpractice attorney at Dolman Law Group. Medical malpractice is one of the most difficult areas of personal injury law. This is partly because it is so difficult to prove negligence in these cases. The evidence presented in medical malpractice cases is intricate and often confusing. Creating a link between the doctor's negligence and your injuries can be challenging. Testimony from expert witnesses can help simplify the evidence so that jurors can understand it.
Did Medical Malpractice Injure You in Boston?
Medical malpractice can potentially leave you with a lifetime of pain, disability, and medical bills. If a doctor, nurse, medical technician, pharmacist, hospital administrators, or other healthcare professional has committed negligence, and you were harmed, consult a lawyer as soon as possible. Our compassionate, Boston medical malpractice lawyers work zealously to protect our clients' rights and obtain the best possible outcome.
Our team brings the resources and legal skills of a large firm to your case while never sacrificing the personal attention our Boston clients deserve. Our dedicated legal team can identify all potential sources of compensation and work tirelessly to obtain the best possible results for our clients.
Boston Medical Malpractice FAQ
Medical professionals provide a vital service in our society. They are supposed to provide medical care with a reasonable level of skill to treat your health condition. Unfortunately, sometimes health care providers hurt you instead of helping you. If that happens, you may have a claim for medical malpractice. Finding out that you may have received inadequate or incorrect treatment is shocking and frightening.
In addition to concerns about their health, people have many questions concerning their legal options. Here are some general answers concerning medical malpractice in Massachusetts. Each case is unique, so you should always speak with a Boston medical malpractice lawyer for guidance on your case. Dolman Law Group offers a free case evaluation to help you find the answers you need.
What does Medical Malpractice Mean Under the Law?
You may have a case for medical negligence or medical malpractice whenever a doctor or other healthcare provider provides care that is below “generally accepted professional standards,” which is the standard that a reasonable professional would provide.
To determine negligence by a doctor, the law compares the doctor's actions with those of a reasonable doctor with the same experience and skill level. You will also need to show that the negligence was the direct cause of some actual harm.
Who May Be Liable for Medical Malpractice in Boston?
Medical malpractice may be the result of an action or failure to act by doctors, nurses, pharmacists, hospitals, surgical centers, healthcare systems, or other entities that provide medical treatment. Hospitals must prevent patients from harm and can be held directly responsible for their own negligence. Under federal and state statutes, hospitals must not refuse to treat or admit patients based on their “race, color, religion, or national origin.”
Hospitals may fail to perform necessary diagnostic tests or may not admit or discharge patients correctly. Even if a hospital has not committed negligence directly, it may be vicariously liable for the negligence of its employees. This can be a complicated issue because some health care providers, such as doctors, are independent contractors rather than hospital employees.
If the doctor who is an independent contractor commits malpractice while providing medical treatment to a patient in the hospital, the hospital is not accountable for the doctor's malpractice. However, if the hospital grants attending privileges to a doctor who is unlicensed or incompetent, then the hospital may be liable. The hospital must ensure that there are enough nurses on duty at all times to care for the patients and that employees are properly qualified, licensed, and trained.
What Is the Deadline for Filing a Medical Malpractice Lawsuit in Boston?
Every state has set deadlines for filing legal claims, including claims for medical malpractice. These deadlines are known as statutes of limitations. You must file a claim in Massachusetts within three years of the malpractice event or discovery of the injury that was caused by the malpractice.
This sounds simple, but the statute of limitations laws can be complex in practice. When was the harm discovered? How old was the patient when the medical mistake occurred? These and other factors can affect the correct deadline for your case. If you fail to file your lawsuit within three years, you can't bring a claim unless one of the exceptions applies.
- The discovery rule: One of the exceptions to bringing a claim within three years of the alleged malpractice is called the discovery rule. This rule says that if the injured person did not discover (and reasonably could not have discovered the harm or injury within three years of when the harm occurred), the victim could file a lawsuit within three years from when they actually discovered the injury or harm.
- The statute of repose: This rule sets a final deadline to bring a case forward regardless of when the victim discovered the harm. In Massachusetts, the law provides that a plaintiff must file a medical malpractice case in court within seven (7) years of when the malpractice occurred. This rule controls regardless of any of the listed exceptions above. The only exception is for cases where a doctor leaves a foreign object, such as a surgical sponge, in the body. In those kinds of cases, the three-year filing deadline applies.
- The statute of limitations for children: If the malpractice occurred before the child reached the age of six, then the child's representative or attorney must file a claim before the child reaches the age of nine. This rule is different if the injury occurred at birth. In that case, the lawsuit must be filed by the child's seventh birthday.
What Types of Compensation Can I Receive in a Boston Medical Malpractice Claim?
Many factors affect the potential compensation for a case, including the severity of the injury or harm, the length, the type of medical treatment involved, the amount of past and future medical expenses, and; the extent of any future disability or physical impairment. The victim usually receives compensation for all medical expenses that resulted from the doctor or healthcare provider's negligence, as well as compensation for lost wages, pain and suffering, emotional distress, and other damages.
If the medical malpractice resulted in the death of the victim, the family members of the victim could sue for wrongful death damages to hold the doctor or care provider responsible. Potential compensation in a Boston medical malpractice case may include:
- Compensation for pain and suffering: This is physical or mental anguish you went through as a result of the injury. This includes any pain, discomfort, emotional trauma, and inconvenience you may have suffered. Because this is a non-economic damage, it can be more difficult to calculate. Our attorneys will be able to help you determine the value of your pain and suffering.
- Compensation for past and future medical expenses: Any past, current, and future medical care could be recovered. This includes any doctor's visits, emergency medical care, hospitalizations, ambulance rides, and medications. This also includes any type of rehabilitation. If you need physical therapy, occupational therapy, or speech therapy because of your injuries, you could include those in your claim.
- Compensation for lost wages, or current and future loss of earning capacity: Some injuries could require you to be out of work for a long period of time. In these cases, you could recover the money you lost during that time. Some injuries from medical malpractice cases may be severe enough to where you may not be able to return to work in the same capacity, if at all. If this occurs, you could be compensated for future wages you may lose.
- Compensation for negligent infliction of emotional distress: Being the victim of a medical malpractice incident could have negative consequences on your mental health. Some medical malpractice victims may suffer from anxiety, depression, or post-traumatic stress disorder (PTSD) as a result of the incident or injuries. If you suffer from any mental health conditions because of your injuries, you could include emotional distress in your claim.
- Compensation for loss of consortium or the companionship and care of a loved one: If your loved one passed away or was severely injured because of a medical malpractice incident, you could be compensated. If you have lost love, companionship, support, or comfort because of the incident, you could include loss of consortium to your claim. Usually, spouses or children of the decedent or severely injured person can include this type of loss in their claim.
In Boston medical malpractice cases, state law caps non-economic damages at $500,000. However, there may be exceptions in cases involving severe, permanent injury, or disfigurement. The court seldom awards punitive damages in Boston malpractice cases. However, in cases where the patient dies due to willful misconduct, punitive damages might be available.
What Is the Difference Between a Trial and a Settlement?
A trial and a settlement are two different legal processes for resolving your case. Over 95 percent of medical malpractice claims result in out-of-court settlements, but some fail to settle and must proceed to trial. Defendants may wish to settle to avoid the risk of a much higher jury award. Sometimes plaintiffs just don't want it to drag on for years.
When you sue for medical malpractice, the doctor or healthcare provider's malpractice insurer may offer to settle the case out of court. If you accept a settlement, then you agree not to take the case to court in exchange for a fair sum from the insurance company for your losses. The parties can negotiate until both agree on an amount, which usually falls within the defendant's insurance policy limits. If the parties do not reach a settlement agreement, then the case goes to court.
What Happens in a Trial?
Every trial is different, but most trials follow certain basic procedures. Before the trial, the attorneys will file trial motions requesting that the court rule on issues that affect the trial, parties, evidence, testimony, or points of law. The judge will hear the attorneys' arguments on the motions and make a ruling. Both attorneys file proposed jury instructions with the court, which are instructions on the applicable law. A jury is usually selected.
The plaintiff's attorney and the defendant's attorney each make an opening statement. An opening statement summarizes the evidence they expect to present to the jury during the trial. The attorneys present their evidence, such as witness testimony and medical records, and other documents. Each attorney makes a closing argument. During this time, they review the evidence presented to the jury and argue their case. The judge instructs the jury on the law; the jury considers the evidence and returns a verdict.
How Long Will My Boston Medical Malpractice Case Take?
Medical providers and their insurance companies generally are not in any hurry to move the case along and fight malpractice charges strenuously. The longer the delay, the more likely it is that key witnesses become unavailable or that the plaintiff may become discouraged and accept a lower settlement offer.
Medical malpractice cases are usually very complicated. They usually require testimony from several expert witnesses about various medical specialties. They are needed to explain how the defendant failed to meet the generally accepted standard of care. As a general rule, medical malpractice suits are lengthy, taking months and often years to conclude. It is common for a case to take up to three years before it comes before a judge or jury.
Why do I Need a Lawyer for my Boston Medical Malpractice Case?
Yes. In Boston courts, a medical malpractice case can be more complicated than other kinds of civil lawsuits. This is partly due to the Massachusetts tort reform statutes. A tort is a civil wrong that involves harm that is caused either through purposeful or negligent conduct.
Tort reform refers to procedural safeguards that are in place to discourage the filing of frivolous or baseless lawsuits against health care providers. Also, the medical issues in medical malpractice cases are difficult and hard for anyone other than a medical expert to understand. The work of a medical malpractice attorney and their legal team typically includes:
- Investigation of all the circumstances and potential causes of your illness or injury
- Determining all of the possible persons or entities who are responsible for the harm you've suffered
- Knowing the value of your claim. The victim may have expectations that are unrealistically high or low. Attorneys have experience in assessing the harm and determining how much compensation you should receive.
- Dealing with insurance companies, healthcare providers, and other attorneys. A malpractice suit requires a great deal of communication and correspondence between the parties. People are often unsure of how to respond if the opposing insurance company contacts them or what they should say. Attorneys can handle these communications, advise you on how to respond, and relieve much of the stress on you.
- Negotiating the best settlement possible. Lawyers know how to negotiate. They do it constantly. Strategic preparation, maximizing their leverage and controlling the agenda all enhance their ability to negotiate a favorable settlement.
- Handling the constant paperwork. The documents involved in a medical malpractice lawsuit contain a great deal of legal and medical jargon. It is essential to file claims and promptly respond to correspondence from other parties. Also, the process of handling a claim can be extremely time-consuming and exhausting, especially for someone who is trying to recover from an illness or injury.
- Utilizing resources. A malpractice attorney has the experience, knowledge, and resources to obtain the best possible outcome for your case.
- Avoiding mistakes. Delays in consulting a qualified malpractice lawyer can mean costly mistakes. If you don't know the process of filing a claim, you're much more likely to make mistakes, which can be difficult or possibly impossible to correct. Mistakes can also be extremely costly and damage your injury case. You want your case handled correctly, the first time and every time.
- Arguing your case before a judge or jury. If the parties do not reach a settlement agreement, the plaintiff's attorney must present the case before a judge or jury. The success of a claim hinges on the ability to argue a case. Attorneys carefully research and prepare the case and will zealously fight for the damages to which you are entitled.
Dolman Law Group Will Advocate for Your Rights to Receive Compensation
At Dolman Law Group, we are different from other firms. We give our clients big firm results while providing small firm attention. Our attorneys understand that you may be out of work or have medical bills piling up. We want you to get compensation as soon as possible to help you deal with any financial hardships. If you choose our firm, you can expect the following:
- Free consultations: During the initial consultation, we will determine if you have a case and answer any of your questions.
- No fee promise: We are confident in our ability to recover the compensation you deserve and do not charge for our services unless there is a positive outcome in your case.
- Extensive resources: We have the financial resources to take on large companies. In the past, we have taken on Walt Disney World, Walmart, Target, and many large insurance companies.
Our attorneys want to eliminate any financial hardships you may be having because of your injuries. We are ready to advocate on your behalf to reach a fair settlement. If a settlement cannot be reached, we will be prepared to represent you in front of a jury.
You Need Our Boston Medical Malpractice Attorneys in Your Corner
Injuries caused by medical malpractice are often serious and may change your life permanently. Recovering is a challenge. The stakes are high. You need to pay medical bills and recover lost wages, as well as obtain fair compensation for all of your losses. You don't need to fight this battle alone: A skilled Boston personal injury lawyer will protect your rights, provide counsel, and advocate on your behalf.
At Dolman Law Group, our experienced, compassionate legal team can give your case both the personal attention and the zealous representation you need. For more information, contact us online, or call Dolman Law Group.
Dolman Law Group Accident Injury Lawyers, PA
76 Canal Street, Suite 302
Boston, MA 02114