Medical Malpractice

You should always be able to count on your medical provider to deliver the appropriate services to you. But medical errors are a daily reality in Massachusetts. Know your rights.

Medical malpractice is a serious matter that can lead to consequences such as permanent physical injury, decreased emotional well-being, and even death. 

Parties not directly affected can also be negatively impacted. In fact, Massachusetts law recognizes the right of a family member of an injured patient to bring a claim against the wrong-doer for his/her own loss.

On this page, you'll learn:

The Basics of Medical Malpractice in Massachusetts

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

What are some examples of medical malpractice?

  • Failing to diagnose, or sometimes misdiagnosing an illness or condition
  • Mixing up test results, or ignoring the results
  • Failing to communicate properly with the other treating doctors and medical providers
  • Prescribing the wrong medication or wrong dosage 
  • Inadequately treating a condition
  • Premature discharge or poor aftercare
  • Unnecessary surgery, or wrong-site surgery
  • Leaving a foreign object inside the body
  • Failing to properly monitor a patient while undergoing surgery
  • Failure to warn patient of certain risks (see “What is informed consent?”)

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.

How Medical Malpractice Cases Work

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.

Is there a limit to how much can be awarded?

In Massachusetts, there are limits to how much a patient can be awarded, which are called damages. The limits placed are called damage caps. The following are the types of damages available to patients who have been injured during medical treatment:

  • Compensatory damages: These damages reimburse the patient for expenses like lost wages and medical costs. This includes past, present, and future medical costs associated with the injury. The patient must provide proof of their expenses, such as copies of medical bills, to be awarded compensatory damages. Compensatory damages also include lost potential earnings, under the Massachusetts doctrine of  “loss or diminution of earning capacity.” This is based on the skill and training the person had at the time of the injury. Massachusetts does not place a cap on these damages. 
  • Non-economic damages: These are damages that cover intangible costs like pain and suffering. In Massachusetts, an injured patient cannot receive more than $500,000 in non-economic damages. There are certain circumstances, including substantial disfigurement or impairment of bodily functions, where this cap is lifted.
  • Punitive damages: These damages are rarely awarded in Massachusetts medical malpractice cases unless the patient dies due to the willful misconduct of the medical professional. Punitive damages are intended to punish the healthcare provider for purposefully causing injury. 

Additionally, damages against a charitable organization, which most Massachusetts hospitals are, are limited to $100,000. While the hospital may not be liable for more than this amount under the charitable cap, employees such as doctors or nurses may be sued for their negligence.  Learn more here about how compensatory and punitive damages are calculated in Massachusetts.

Other Common Questions about Medical Malpractice

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.

Are nursing home abuse cases medical malpractice?

It depends on the circumstances and whether the patient was receiving medical treatment at the time the nursing home injury or abuse occurs.

Is a misdiagnosis considered medical malpractice?

A misdiagnosis can be malpractice under certain circumstances. It must be proven that a doctor or healthcare provider failed to properly diagnosis the patient and that the average doctor or provider would have properly diagnosed the patient. It also needs to be proven that the patient suffered an injury or harm as a result of the misdiagnosis

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 contributory negligence?

When the patient’s own actions contribute to their injuries or worsening of their condition, it can be considered contributory negligence. For example, failing to follow the doctor’s instructions could make the patient at least in part liable.

Massachusetts follows a modified comparative negligence rule. This means the patient’s award of damages is reduced in accordance with their fault. If the patient is found a certain percentage at fault, their damages are reduced by that percentage. If a jury finds the patient more responsible for her damages than a doctor or healthcare provider, the patient is not entitled to recover under Massachusetts law.

Before a medical procedure or treatment, the health professional must advise the patient of the potential outcomes and potential side effects or complications. By providing this information, there is informed consent by the patient. If this conversation does not take place, and the patient is harmed, there may be a case for medical malpractice, although Massachusetts has fairly strict rules that are unfriendly to patients in these types of cases.

Can a medical malpractice case be reopened?

No. Once a case is settled, there can be no further legal action in connection with the events, as in any civil case. If there is a settlement in a medical malpractice case, the compensation paid will be for injuries to date as well as any further injuries that may arise in the future.   

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?

In Massachusetts, a patient has three years from the time they learn about their injury to file a medical malpractice lawsuit. This counts from the time they should have reasonably learned about their injury, up to seven years from the date of the actual incident. 

The exception to the seven-year cap is in cases of retained foreign objects, such as surgical instruments. There are different rules that apply when the patient is a minor child. This makes it especially important to talk with a medical malpractice lawyer as soon as there are any signs of injury. To file the lawsuit, the patient and attorney do not need to have completed all investigation of the claim by the deadline

SUGARMAN has decades of experience helping people with Medical Malpractice cases in Boston and greater Massachusetts. If you need help, we're here to talk.