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According to a study published by Johns Hopkins University, which analyzed medical death rate data over an eight-year period, safety experts calculated that more than 250,000 deaths per year are due to medical errors, making it the third leading cause of death in the United States.
While Massachusetts is fortunate to have some of the finest hospitals and medical care providers in the country, mistakes still happen, and when they do, they can have catastrophic consequences for patients and their families.
To successfully pursue a medical malpractice case in Massachusetts, certain essential criteria must first be satisfied. First, a medical expert retained by the plaintiff (the party bringing the case) must provide a written opinion that (1) a deviation from the accepted “standard of care” has occurred; (2) the deviation from the standard of care resulted in serious injury or death; and (3) the resulting injury or death – in the opinion of the medical expert – was most likely (>50% probability) caused by the physician’s deviation from the established standard of care. When, and only when a qualified medical expert can proffer such opinions is the case a viable candidate for medical malpractice litigation.
Massachusetts General Laws chapter 231 section 60L sets forth the steps that a plaintiff must follow before a lawsuit may be properly filed in court. First, the plaintiff, typically by and through his/her legal counsel, must send a letter to each of the medical providers against whom a claim is contemplated, advising them of the allegations of medical malpractice being asserted against them. The medical providers are then required to provide a written response to the “60L Notice Letter” setting forth their defense(s) to the allegations asserted by the plaintiff. Once this procedural requirement is satisfied, the litigation can formally begin.
After the lawsuit is filed in the appropriate court, the plaintiff must then file a document or “pleading” referred to as the “Plaintiff’s Offer of Proof,”. The Offer of Proof is basically a written presentation of the case, containing the opinions of the plaintiff’s medical expert(s), outlining the evidence of negligence on the part of each named defendant. Counsel for the defendant(s) then decides whether to challenge the plaintiff’s Offer of Proof or allow it to stand unchallenged. If challenged, the court then schedules a Medical Malpractice Tribunal hearing, composed of a judge, a lawyer, and a medical practitioner (usually a physician or nurse) to review the Offer of Proof. At the hearing, the Tribunal members review the evidence contained in the plaintiff’s Offer of Proof and are free to question counsel for both sides on any issues about which they wish to inquire. The Tribunal must then decide (by vote) whether the plaintiff’s Offer of Proof raises a legitimate question of liability for a court (or jury) to decide, or whether the plaintiff’s claim concerns merely an unfortunate medical result. If a legitimate question of liability is found, the case proceeds toward trial. If, on the other hand, the Tribunal is not convinced that a legitimate question of liability is supported by the evidence presented to the Tribunal, the plaintiff may still proceed to trial, but will first be required to post a “bond” with the court, in the amount of $6,000, to help defray the legal defense costs incurred by the medical defendants if the jury finds in favor of the defendants.
What Are The Different Forms of Medical Malpractice?
Failure to Diagnose and Timely Treat: This category of medical malpractice claims is among the most common and often results in a delay in treatment leading to medical complications or death. Typical examples include the failure to diagnose treatable cancer; the failure to investigate and treat symptoms suggestive of active heart disease or stroke, as well as the failure to diagnose and treat other diseases and conditions which typically respond well to timely treatment.
Errors during Surgery: Whether the case involved an anesthetic error, inadvertent damage to a body part, or a preventable complication during surgery, such errors can leave a patient with serious medical problems, and, in extreme cases, result in death.
Birth Injuries: Doctors or Nurses may make critical mistakes during the labor and delivery process. Such errors can result in permanent brain injury, nerve damage, or fractured bones.
Medication Errors: Errors in the choice and dosage of proscribed medication is another common cause of injury or death and can occur in both hospital and office settings, as well as by pharmacies and by others charged with prescribing and preparing medications.
Massachusetts Medical Malpractice Statute of Limitations
In Massachusetts, the deadline (“statute of limitations”) within which a lawsuit must be filed once a medical error is suspected, is usually three (3) years from the date the alleged malpractice occurred or could reasonably have been determined. The limitation period may be enlarged if a patient could not reasonably have known about the alleged malpractice until a later date (often referred to as the “discovery rule”), but in no case may a medical malpractice case must be brought more than seven (7) years after the negligence occurred, whether the error was discoverable or not. If the claim involves a minor under the age of six, they have until age nine to file a claim or their right to pursue compensation may be forever lost. This seven (7) year absolute deadline (also referred to as the “statute of repose”) does not pertain to leaving a foreign object left in a body during surgery.
When selecting an attorney to handle your medical malpractice case, choose a law firm with a proven record of success. Parker Scheer LLP never charges a fee for an initial consultation, and all cases are handled on a “contingent fee basis”, meaning there is no legal fee charged unless and until we recover compensation for your injuries and losses.
If you or a family member have suffered a serious injury or death as a result of medical malpractice, contact one of our Boston medical malpractice lawyers to obtain a free confidential consultation.
Common Medical Malpractice Questions
What Do Medical Malpractice Lawyers Do For Victims Of Neglect?
What is a medical malpractice lawyer and what exactly does one do? Being represented by an experienced attorney is important in all personal injury cases, but especially those involving medical malpractice. These cases are incredibly complex and often require attorneys to hire expert witnesses and conduct thorough investigations in order to prove liability.
You will need an attorney who has a deep understanding of complex medical issues to represent you if you want to achieve the best possible outcome in your case. If you don’t have an attorney, it will be a challenge to get the evidence that you need to prove the defendant’s liability.
What Do Medical Malpractice Attorneys Charge For Their Legal Services?
One of the first questions that clients often ask is, “How much do medical malpractice lawyers in MA charge?” Many people assume that the cost of a lawyer is based on the amount of time that they spend on your case, but that’s not necessarily true.
Personal injury attorneys do not typically charge clients hourly or flat fees. Instead, they work on a contingency fee basis, meaning they won’t get paid unless they help you recover compensation for your injuries.
Failure to Diagnose Cancer
The delayed diagnosis of cancer is much more common than you may think. In fact, over 12% of all cancer cases are misdiagnosed at first. This can lead to a serious delay in the correct diagnosis, making cancer which may have been treatable much more difficult to treat or untreatable altogether. Because of this, cancer can result in complications, disfigurement, or the death of the patient that could have been avoided.
As with any medical malpractice claim, a case of misdiagnosis of cancer requires experienced personal injury attorneys who can get you the best possible results. The medical malpractice lawyers at Parker Scheer LLP have years of experience in medical malpractice cases and can get you the results you deserved.
Cases involving the delayed diagnosis of cancer are often complicated. Doctors who failed to diagnosis will claim that an earlier diagnosis would not have helped the patient, or that they were not negligent in making their diagnosis. The experienced Boston medical malpractice lawyers at Parker Scheer LLP can handle this for you, as well as the complex parts of your case.
Cases of a Delayed Diagnosis of Cancer
A misdiagnosis of cancer can come from a number of different negligence actions from a medical professional. The failure to perform a needed diagnostic test, incorrect interpretation of test results, failure to recognize a tumor, incorrect performance of a procedure, technology malfunctions, lost lab results, misread x-rays and failure to refer the patient to a specialist can all lead to a delayed diagnosis.
Who is Liable?
In most cases, the claim is brought against the medical professional who was negligent and therefore delayed the diagnosis. The professional can be a general practitioner who failed to perform the diagnostic test or refer a patient, a radiologist who did not correctly interpret the patient’s x-rays or the surgeon who failed to remove the tumor correctly. There have also been cases where technology malfunctions and that technology’s manufacturer has been found liable.
What should you do if you are affected by the Misdiagnosis of Cancer?
If you have been affected by the delayed diagnosis of cancer, there are several steps that you should take:
Contact a Medical Malpractice Lawyer to discuss your case. An experienced attorney will be able to guide you throughout the process, and it is important to begin the process as quickly as possible in order to preserve as much testimony and evidence as possible.
Work with your lawyer. Gathering all medical records related to your case is imperative.
Keep track of all records relating to your case, including doctor appointments, events, and medical bills. In addition, make sure you have copies of all test results and receipts.
Over 1.3 million Americans are injured each year because of prescription errors. If you or a loved one have been injured due to a medication error, the lawyers at Parker Scheer LLP. Our medical malpractice lawyers have years of experience handling personal injury cases that result in serious injury or death.
Causes of Prescription Error
Errors involving medications can result from a wide range of scenarios, including the following:
Incorrect medicine being prescribed or given to the patient
Incorrect dosage- either too large or too small- being prescribed or given to the patient
Failure by a medical professional to give the patient medication on time, or complete failure to give the patient their medication
Failure by a medical professional to check patient history for allergies, potential drug interactions or lab results before administering medication
Incorrect translation of a doctor’s handwriting by either the nurse or pharmacist
Incorrect reading of a dosage by a pharmacist, leading to drug overdose
Confusion of two similarly named drugs by a medical professional
Incorrect labeling of prescription drugs
Reckless prescription of a drug for a patient with past issues with substance abuse
According to the national coordinating Council for Medication Error Reporting and Prevention, a prescription error is a preventable event which causes or leads to the inappropriate use of medication or harm to the patient during the time in which the medication is controlled by the medical professional, patient or consumer. The doctor, pharmacist, or a nurse who administers the medication to the patient can make a prescription error. In severe cases, a medication error can lead to the death of the patient.
The Elderly are the Most At Risk
The risk of falling prey to a medication error is present for anyone who takes prescription medication. According to a recent study by the FDA, nearly half of all medication errors that led to the death of the patient affect those over age 60. The elderly are generally thought to be the most at risk due to the higher number of prescriptions they have.
Steps to take to Prevent Prescription Errors
Preventing all medication errors is impossible. However, there are some steps you can take to decrease the risk. Talk to your doctors about all prescribed medications, and make sure all doctors you see have your complete medical history. In addition, when picking up prescriptions from your pharmacist be sure to double check all of the labels and that you are getting the medication in the proper dose. If something doesn’t seem right to you, be sure to ask your doctor or pharmacist.
Schedule A Consultation With One of the Top Medical Malpractice Law Firms in Boston, MA
If you have suffered an injury due to a doctor’s negligence, please contact our Boston medical malpractice lawyers for a free consultation and receive a response within hours after filling out this form. You can also call our office at (617) 886-0500.
Massachusetts Medical Malpractice Case Results
Each year, hundreds of thousands of adults and children are injured or die as a direct result of medical errors. According to at least one study published in the Journal of the American Medical Association (JAMA) and conducted by the Institute of Medicine (IOC) medical malpractice is reportedly the third leading cause of death among Americans. This is where a team of medical malpractice lawyers in Massachusetts can help.
The report, entitled “To err is human,” which was issued by the IOM’s Quality of Health Care in America Project, describes two studies that attribute up to 100,000 deaths per year to medical mistakes. According to published statistics, 12,000 deaths per year due to unnecessary surgery; 7000 deaths per year due to medication errors in hospitals; 20,000 deaths per year due to other errors in hospitals; 80,000 deaths per year due to infections in hospitals; and 106,000 deaths per year due to negative effects of drugs. Despite baseless claims by both the medical profession and the insurance giants that insure them, the rising costs of medical malpractice insurance are more directly tied to poor investment returns by the insurance companies, than the result of “frivolous” lawsuits. Medical malpractice cases come in many forms, and as the result of many different types of cases. The most common include:
- Incorrect diagnosis or Failure to Diagnose: This type of medical malpractice case is the most common and often leads to a delay in treatment or health complications.
- Errors during Surgery: Whether an error in anesthesia, accidental damage to a body part, or a complication resulting from the surgery, these can leave the patient with serious medical problems, and, in extreme cases, death.
- Failure to Treat: If your doctor fails to treat you properly for your condition, including discharging you too early and/or failure to follow-up post-treatment, you may have a medical malpractice case.
- Prescription Errors: This type of error varies greatly and can occur at the hospital, pharmacy or recovery facility.
Case Result – Dystonic Cerebral Palsy
OTHER USEFUL INFORMATION:
The plaintiff, a 37 year-old woman, became pregnant with her second child. During her pregnancy, she presented to the defendant OB/GYN for periodic, routine evaluations. By the 37th week, the “fundal height” was not tracking consistent with the gestational age of the fetus. According to the defendant’s own deposition testimony, when a discrepancy exits between the fundal height and the gestational age that is two centimeters or greater in the absence of any other known explanation for the discrepancy, the requisite standard of care required that further evaluation and testing be performed. In this case, the discrepancy was greater than two centimeters after 37 weeks, but the defendant testified that despite the lack of any notes in the record explaining her investigation, the discrepancy must have been explained because she did not order any further testing.
The mother’s medical chart, however, provided no description by the defendant as to her explanation for the discrepancy that would have warranted foregoing further testing. Weeks later, when the mother was 39.5 weeks, she reported decreased fetal movement to her doctor. Her treating doctor was on vacation and another doctor in the practice group evaluated her. A Fetal Heart Rate Monitor was attached to the mother, which the fetus was non-reactive with poor variability. After being on the monitor for more than 50 minutes, the covering doctor advised the mother to drive herself to a nearby Boston emergency department for evaluation.
Upon the mother’s arrival to the emergency department, she was sent to Labor and Delivery where she underwent further fetal heart rate monitoring, which confirmed the hostile uterine environment for the fetus and an emergency cesarean delivery was performed.
The fetus was delivered in serious condition and was not breathing. Pediatricians took over the care of the newborn and the baby began shallow breathing. He was transferred to the Transitional Care Unit within the hospital, but when his respiratory status did not improve, he was transferred to the NICU and intubated. Blood work from the umbilical cord confirmed metabolic acidosis, a potential life threatening condition wherein high levels of acid are found in the blood, often caused by decreased oxygen over an extended period of time.
The baby was ultimately diagnosed with dystonic cerebral palsy and he is unable to speak, walk, care for him self in any way, or eat. He is and will remain totally dependent on his parents for his basic needs. In addition to claims brought on the minor’s behalf, claims for loss of consortium were also alleged on behalf of the parents.
At trial, the plaintiff’s experts were prepared to testify that the treating OB/GYN deviated from the standard of care when she failed to conduct any further testing when there was a 2-3 cm. discrepancy between the fundal height and gestational age of the fetus. Plaintiffs’ experts were prepared to testify that had she performed further testing, placental dysfunction would have been revealed and early delivery would have been ordered which would likely have spared the baby his life altering conditions. The plaintiff’s experts were also prepared to testify that the covering doctor created an unnecessary delay in referring the mother for further testing and prompt delivery. The plaintiffs’ experts were also prepared to testify that the pediatricians following delivery, contributed to the baby’s brain damage by failing to ensure adequate oxygenation post-delivery by prompt transfer to the NICU and intubation.
The defendants’ experts were prepared to testify that the defendant doctor adhered to the standard of care because further testing was not necessary because the treating OB/GYN satisfied herself that the discrepancy was explained by the position of the baby. The defendants’ experts were also prepared to testify that the covering doctor did not deviate from the standard of care, but rather acted appropriately given the facts she was presented with during her visit with the mother. Finally, the defendants’ experts were prepared to testify that the pediatrician was heroic in saving the baby’s life following delivery, and that her actions were appropriate given the baby’s response to treatment. Also, the defendants’ experts would have argued that the effects of the lack of oxygen to the fetus were established before the baby was born and nothing that the pediatricians did or failed to do caused or contributed to his permanent brain damage.
The case settled after one full day of mediation and one month prior to trial.
Medical Malpractice Lawyers in Massachusetts
Parker Scheer lawyers have successfully represented scores of adults and children injured or killed as a result of medical errors. Medical malpractice litigation remains one of the most complex areas of Massachusetts personal injury law. When selecting an attorney to handle your important medical malpractice case, choose a law firm with a proven record of success. There is never a fee for an initial consultation and all cases are handled on a contingent fee basis, meaning there is no legal fee charged until we recover for you.
Find Out If You Have A Medical Malpractice Case in Massachusetts
If you have suffered an injury due to doctor’s negligence or medical malpractice, contact our medical malpractice lawyers for a free confidential case review and receive a response within hours, or call (617) 886-0500. If you need a medical malpractice lawyer outside of Massachusetts, contact us for a referral.