By: Dina M. Swanson | Partner
You or a loved one may have recently undergone surgery or visited a doctor and unfortunately, did not receive the results you expected. You may be wondering if there is a claim for medical malpractice or just an unfortunate medical result.
Medical malpractice occurs when a patient suffers damage while under the treatment of a medical professional. But what constitutes medical malpractice sufficient that there is a claim against that medical provider? Massachusetts law determines a legitimate medical malpractice claim. Medical malpractice is a form of negligence.
ELEMENTS OF THE CLAIM
In order to establish a claim for medical malpractice in Massachusetts, one must establish 1) the medical provider was negligent by breaching the standard of care owed to his or her patient; 2) the negligence of the medical provider caused injury to that patient; and 3) the patient suffered damage as a result.
BURDEN OF PROOF
In Massachusetts, expert testimony from a medical provider in the same field as the provider alleged of medical malpractice, must be presented to establish the provider was negligent and the patient suffered damage as a result. Another expert is required to establish the patient suffered damages as a result.
WHEN MUST A CLAIM BE BROUGHT?
In Massachusetts, a medical malpractice case must be filed in the appropriate court within three (3) years of the date of the injury. However, there are some exceptions to this rule. If the malpractice is not known or reasonably knowable, then the clock for filing an action does not begin until the plaintiff becomes aware of the injury or the malpractice, otherwise known as the Discovery Rule. Once the malpractice and/or injury is known or reasonably knowable, the clock begins to run and a claim must be brought within three (3) years of that time.
An exception to that rule is when medical malpractice involves a child under the age of six (6). In that scenario, suit may be commenced up to six (6) years following the medical malpractice or discovery of the medical malpractice. However, the suit must be brought by the child’s ninth (9th) birthday regardless of the date of discovery.
Although the Discovery Rule extends the time for bringing a medical malpractice action, a deadline for all claims is imposed in Massachusetts by the Statute of Repose. Pursuant to the Statute of Repose, no suit for medical malpractice may be brought more than seven (7) years after the negligent act occurred unless the case involves a foreign object left in the body following a procedure.
CAPS ON DAMAGE IN MEDICAL MALPRACTICE CASES
In Massachusetts, a plaintiff may not recover in excess of Five Hundred Thousand Dollars ($500,000.00) for pain and suffering, loss of consortium or companionship, embarrassment and any other general damages, unless a jury determines there was a “substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstance in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.” Mass. General Laws, Chapter 231, §60H.
Furthermore under Massachusetts law, damages against a charitable organization are limited to Twenty Thousand Dollars ($20,000.00). This cap serves to limit the liability against charitable employers, however, it does not cap the damages against a responsible employee, i.e. a nurse or doctor.
DAMAGES
A plaintiff who has been damaged by medical malpractice in the state of Massachusetts may make a claim for compensatory damages to reimburse a patient for certain expenses, such as medical costs and lost wages. A plaintiff may also seek non-economic damages for intangible damages, such as pain and suffering.
Lastly, Massachusetts permits a plaintiff to seek compensation for punitive damages which are damages intended to punish the health care provider for willful misconduct. These damages are rarely awarded in Massachusetts, but are available in cases where a patient suffers damage as a result of the willful misconduct of a medical provider.
Medical malpractice cases are extremely complex and can take years to resolve. If you feel as though you or a loved one may have a claim for medical malpractice, it is essential that you act immediately in order to protect your rights.
If you have any questions, concerns or a potential case, please contact our office at (508) 823-4567 or send an e-mail to Attorney Dina M. Swanson at dswanson@www.wynnandwynn.com.
