Medical Malpractice

What is medical malpractice?

Medical malpractice is negligence in the medical care and treatment provided by a doctor, nurse, or other healthcare professional. There are many different types of medical malpractice, such as:

• Child birth errors
• Failure to diagnose, or misdiagnosis
• Anesthesia errors
• Surgical injuries
• Spinal cord injuries
• Medication errors

This is not a complete list, by any means.

Who can be held liable for negligence?

• Doctors
• Radiologists
• Nurses
• Pharmacists
• Hospitals/Urgent care/Treatment centers/Clinics/etc.
• Surgeons
• Anesthesiologists
• Dentists

How do you prove medical malpractice?

In order to prove a medical malpractice case, your lawyer must prove three things:

1. Your healthcare provider was negligent
2. The negligence caused the injury
3. You sustained a loss or damages as a result of that injury

What types of compensation are you entitled to?

1. Reasonable medical expenses that have been incurred or that will be incurred in the future;
2. Lost wages, loss of earning capacity, other economic losses;
3. Pain and mental suffering, loss of companionship, embarrassment, and other items of general damage;
4. Any impairment or loss of bodily function, whether temporary or permanent in duration;
5. Scarring or disfigurement caused by the defendant’s negligence; and/or
6. Loss of chance of survival.

Consortium Claims for Family and Survivors

When a family member sustains serious injuries, the whole family can suffer. For example, if a father of a family is the victim of a surgical error and is left paralyzed, that affects his whole family and their financial well-being. For this reason, the law recognizes the right of certain family members of an injured patient to bring their own claims against the wrong-doer for their own loss. Massachusetts courts describe this type of claim as “a loss of consortium claim,” and can extend to spouses, children, and parents. This includes loss in the following areas:

• loss of companionship and society;
• loss of comfort, solace or moral support;
• any loss of enjoyment of sexual relations; and
• any restrictions on social or recreational life.

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What does a malpractice suit cost? Will I have to pay?

If a lawsuit is brought, costs can include legal research fees, depositions, and hiring expert witnesses, among others. This can add up to a significant amount of money. Often, SUGARMAN “advances” these funds to be repaid by the client if the claim is settled or if your attorney achieves a jury verdict. This means that you don’t have to be wealthy to get your day in court; you get a fair chance.

What is a contingency fee?

SUGARMAN's personal injury attorneys typically work on a contingency fee basis. This means a legal fee is only paid if the claim is successful in obtaining compensation. If there’s no recovery of compensation, there is no fee, and no repayment of the out-of-pocket expenses.

All fees and out-of-pocket expense reimbursements are agreed to up front, in a written contract signed by both the law firm and the client.

How does a medical malpractice lawsuit work? How do I start a case?

While each law firm may vary in the details, generally a good malpractice attorney will follow a process like this one.

1. First Contact and Initial Meeting: During this meeting we will learn about you, your life, and what happened to you. Before the initial meeting ends, we may have you sign medical authorizations so we can obtain your medical records.
2. Investigation: Our investigation can and often involves legal research and analysis, a review of all the relevant medical records, and hiring a medical expert to review medical records. The investigation determines if you have a case.
   
3. The Complaint and Initial Steps: A personal injury lawsuit begins with your attorney filing a Complaint on your behalf in court. This is a legal document explaining what happened to you as a result of the defendant’s negligence. In medical malpractice cases, the Court also schedules a Medical Malpractice Tribunal (composed of a judge, a lawyer, and a physician or health care provider in the same specialty as the defendant) to evaluate the legality of your claims. At this time, SUGARMAN’s lawyers will present an Offer of Proof that describe the facts of the case. If the Tribunal decides in the Plaintiff’s favor, the case may proceed without having to post a bond. If not, a cash bond must be posed before the Plaintiff is allowed to continue.
4. Discovery: This step allows each side to learn about their opponent’s case prior to trial. Both sides typically receive written interrogatories or questions. This prepares you for depositions. Depositions are a means of receiving sworn testimony from parties and witnesses who have information about what happened in the case. Once discovery is completed, the next step in your case is receiving a trial date from the court.
   
5. Trial: There are some cases that are resolved prior to trial, either through negotiations or with the help of a mediator. But SUGARMAN's personal injury attorneys prepare each case as if will be tried to conclusion in front of a jury. Jury trials can take anywhere from several days to several weeks. In Massachusetts, personal injury cases are typically tried to a jury of twelve in the Superior Court. Attorneys on both sides try to select jurors they believe will give their client a fair trial. Once the jury and alternates are selected and sworn in, the trial is officially underway.

How do I choose a good medical malpractice lawyer in Massachusetts?

There is no cut-and-dried way to find the right lawyer. Often, clients are referred by local general practice lawyers or by a family attorney to personal injury law firms.

The internet is a useful tool for anyone thinking about bringing a claim, but careful consideration and vetting is required in order to separate marketing claims from real-world client results. Reviewing personal injury law firm websites can help you learn more about various firms before making an informed decision.

For more information on finding the right lawyer for you, see our frequently asked questions page.

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What is negligence?

Negligence is the failure of a responsible person, either by omission or by action, to exercise an appropriate degree of care, vigilance, and forethought. To prove that a healthcare provider was negligent, one must show that the provider did not give the “standard of care” that a patient should have received.

What does “standard of care” mean?

“Standard of care” means what an average medical provider in the field would do. For example, imagine a patient goes to the Emergency Room with sharp wrist pain after falling. If an average doctor would use an X-ray to check for a broken bone, then that would be the standard of care.

What is preponderance of the evidence?

A matter is proved by a “preponderance of the evidence” if after all of the evidence has been weighed, the matter is more probably true than false. This is the standard of proof in all in medical malpractice actions and other personal injury cases. It is less strict than what is applied in a criminal case, where the prosecution must prove its case “beyond a reasonable doubt.” The standard of a preponderance of the evidence essentially means the greater weight of the evidence.

What is a “statutory requirement”?

Statutory requirements are simply legal requirements that come from laws passed by the State or Federal Government.

Are there statutory requirements for medical malpractice cases in Massachuestts?

Yes, Massachusetts has statutory requirements for medical malpractice cases. These requirements specify when a claim can be brought, what type of notice must be provided, limit the damages that can be collected, and require specialized types of evidence. 

For instance, medical malpractice lawyers in Massachusetts must have a licensed healthcare provider in the same field as the defendant testify that there was a violation of the standard of care.

What is the statute of limitations on medical malpractice cases in Massachusetts?

Generally, the standard statute of limitations on medical malpractice cases is three years. This means that victims of medical malpractice have three years after the malpractice occurs to go to a Massachusetts civil court and file a lawsuit.

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