There is an entire field of law devoted to medical malpractice cases. Doctors, nurses and hospitals are sued for various instances of misconduct including surgical errors, failure to follow protocol and improper training.
Doctors are held to the standard of the average qualified and careful physician practicing in the same discipline or field of medicine under similar circumstances. You must also follow strict notice and filing requirements before your claim may be heard.
These cases are often a battle of the medical experts who may argue over what the standard of treatment is for this particular patient and if the doctor’s actions were reasonably skillful and careful in that case. The standard of proof is the usual civil one of proof by a preponderance of the evidence that the doctor’s conduct constituted medical negligence. Promptly consulting with a medical malpractice lawyer in these cases is essential to meet strict deadlines and to preserve testimony and other evidence so that your burden of proof can be met.
Massachusetts law usually requires expert medical testimony to allege and support a claim of medical negligence. Further, your claim must first be reviewed by a panel consisting of a judge, physician and attorney to determine if your case is properly substantiated and contains a legitimate issue of liability. You can still file your case if the panel rules against you but you do have to post a $6,000 bond for the defendant’s costs if you lose at trial.
Even if the physician’s actions were arguably negligent, you have to prove causation or that the doctor’s specific failure to act or the physician’s negligent act was the cause of your injury or death.
Some of the more common types of medical negligence include:
- Wrong site surgery
- Leaving a surgical instrument in the patient
- Not getting a proper or complete history of the patient
- Anesthesia errors
- Failure to diagnose
- Improper treatment
- Wrong medication administered
- Failure to warn of known risks of surgery or course of treatment
You can sue for certain damages including pain and suffering, emotional trauma, medical expenses and lost earnings and lost earning capacity.
In Massachusetts, your award for pain and suffering, loss of companionship and other damages is limited to $500,000 in medical malpractice cases. The law does allow for increased general damages if you can demonstrate that there was a substantial loss or impairment of a bodily function or substantial disfigurement and that limiting the award would deprive the plaintiff of just compensation.