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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:
This page last updated October 2019.
The Basics of Medical Malpractice in Massachusetts
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:
This is not a complete list, by any means.
In order to prove a medical malpractice case, your lawyer must prove three things:
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:
How Medical Malpractice Cases Work
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.
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.
While each law firm may vary in the details, generally a good malpractice attorney will follow a process like this one.
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.
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:
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
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.
It depends on the circumstances and whether the patient was receiving medical treatment at the time the nursing home injury or abuse occurs.
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
“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.
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.
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.
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.
Statutory requirements are simply legal requirements that come from laws passed by the State or Federal Government.
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.
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.