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Articles Posted in Medical Malpractice

In a typical Cape Cod personal injury lawsuit, the plaintiff seeks to recover monetary compensation for damages by asserting a claim of negligence. There are four basic elements to the tort of negligence (duty, breach of duty, damages, and proximate causation).

The plaintiff has the duty to prove each element by a preponderance of the evidence. This requires him or her to convince the jury that the evidence weighs more in his or her favor than in the opponent’s (visualize a tipping of the scales of justice, if you will).

There are other possible remedies that can arise from an alleged act of negligence, including what was described by an appellate court as “a seldom used equitable remedy” in a case filed by a nursing home resident in 2018. The appellate court has now weighed in on the dismissal of the woman’s “complaint for discovery.”

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When a patient is dissatisfied with treatment received from a doctor, hospital, or other medical provider, he or she may have a claim for medical malpractice. An experienced Cape Cod medical malpractice attorney can explain the process of asserting such a claim.

In some instances, there may be the possibility of some other type of legal course, as well. However, such situations are the exception rather the rule.

In a medical malpractice lawsuit, the burden of proof rests on the plaintiff. In order to prevail on a claim for malpractice against an allegedly negligent health care provider, the plaintiff must be able to present proof that the defendant breached the applicable standard of care and that this was the proximate cause of the damages for which the plaintiff seeks monetary compensation.

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In order for a Cape Cod medical malpractice case to be filed in a particular court, there must be subject matter jurisdiction. Most such cases are filed in state court, but sometimes there may be jurisdiction in federal court.

One such situation arises when the person who injured the plaintiff was an employee of the federal government. Generally speaking, the government is immune from lawsuits, but there are special exceptions in these types of cases.

Of course, the government has teams of attorneys whose job is to make sure that only qualifying cases are allowed to proceed. Just like other defendants, the government has a right to defend itself in court, even at the pre-trial stage with regard to jurisdictional issues.

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Being the victim of professional malpractice can be doubly difficult. First, there is the harm caused by a negligent Cape Cod doctor, nurse, or other provider. This alone can be substantial, expensive to rectify (if this is even possible), and life-altering.

Then, there is the emotional difficulty of accepting that someone you trusted to help you was actually the person or entity that caused the harm. The idea of confronting a careless medical professional in a court of law can be daunting, and, truth told, can even dissuade some would-be litigants from seeking compensation for what has happened to them.

However, this only serves to give the negligent provider a “free pass” to continue such conduct in the future, possibly leading to additional patient harm or even death. If you find yourself as the victim of medical malpractice, it is important to consult a Cape Cod medical malpractice attorney who can explain your legal rights, the process of filing a claim, and the procedure necessary in order to seek fair compensation for your injuries.

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Cape Cod medical malpractice cases have some special requirements that other types of negligence cases do not. One of these is the filing of an offer of proof that is presented to a three-person tribunal that will determine whether the plaintiff has enough evidence to raise a legitimate question as to the defendant(s)’ liability for harm caused by medical negligence.

If the tribunal answers the question in the affirmative, the case proceeds to the next phase of litigation in the same manner that a non-medical tort case would. If the tribunal does not find that the plaintiff has presented substantial evidence of liability, however, the case is not necessarily over.

At that point, the plaintiff has the option of posting a bond to cover certain defense costs if he or she does not prevail in the litigation. The court has some flexibility as to the amount of the bond, and the parties may argue that it be adjusted upward or downward from the “usual” amount of $6000.

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Not every bad result in an operating room or emergency treatment center results in a finding of medical negligence. After all, some patients have medical conditions that may not respond to treatment, and some have diseases or injuries for which there is no cure.

However, if a particular patient could have been saved through the exercise of reasonable medical care but, instead, dies because the treating physician’s care fell below the standard of competency for doctors who regularly perform such procedures, a Cape Cod medical malpractice lawsuit may be possible. An attorney who practices in this area will need to review the facts of your loved one’s particular case in order to determine whether there is a reasonable chance for success on the merits before going forward with the case.

Facts of the Case

In a recent case, the plaintiff was the surviving spouse and personal representative of a woman who died after undergoing surgery for treatment of a hiatal hernia in her diaphragm. The plaintiff brought a medical malpractice wrongful death lawsuit against the defendants, a doctor, a nurse, and the professional corporation for whom they worked, alleging that defendants’ treatment of the decedent fell below the standard of care for an average qualified surgeon and nurse and that this breach of care was a substantial factor in the decedent’s death. The defendants answered that the decedent died as a result of longstanding damage to her heart caused by her hiatal hernia rather than from any alleged negligence committed by them.

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Most Cape Cod medical malpractice lawsuits are based on the principles of negligence law. To prove negligence, the plaintiff must prove that the defendant healthcare provider breached the applicable standard of care and that this breach was the proximate cause of the damages for which he or she seeks monetary compensation.

In addition to negligence-based malpractice allegations, some plaintiffs’ malpractices cases may involve other types of civil wrongs, such as battery or intentional infliction of emotional distress. It is possible that the plaintiff in such a case might be successful on some, but not all, of his or her claims. Ultimately, it is up to the trial court judge and the jury (if the case gets that far) to determine these issues.

Facts of the Case

In a recent case, the plaintiffs included the administratrix of a deceased cancer patient and a relative of the patient. According to the plaintiff’s medical malpractice complaint, the defendant medical providers had committed several acts of medical malpractice upon the deceased patient prior to her death. The plaintiffs sought compensation for these instances of medical negligence as well as for battery and intentional infliction of emotional distress.

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If you believe that you or someone in your family has been hurt by the negligence of a doctor, hospital, or other health care provider, you probably have several questions. “How do I file a claim?” “How do I prove my case?” “If I win, how much will the judgment be?”

Another important question – sometimes overlooked by those who are not familiar with the civil justice system – is, “How long do I have to file a Cape Cod medical malpractice lawsuit?” Generally speaking, the answer to this question is “three years.” However, calculating the exact date that a claim becomes time-barred can sometimes be difficult. This is because determining the date that the claim begins to run (and the three-year clock begins to tick) is not always simple.

Facts of the Case

In a recent (unreported) case, the plaintiff was a man who claimed that he suffered an injury to his urethra due to a nurse’s negligent catheterization of him when he was a patient at the defendant hospital in October 2009. The plaintiff was reportedly told that he might urinate blood for a short while but that the bleeding would stop soon. The plaintiff not only had bloody discharge in his urine, but also he experienced painful urination that lasted for several years. However, he did not return to the defendant hospital for further medical treatment until June 2012. According to the plaintiff, he suffered from post-traumatic stress disorder and a phobia that made him fearful of seeking medical attention.

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Most Cape Cod medical malpractice cases are settled out of court, but some do proceed to trial. During trial, it is likely that at least a couple of expert medical witnesses will testify, one on behalf of the plaintiff and one on behalf of the defendant.

Because a lot can hinge on the testimony of the parties’ respective witnesses, it is not unusual for evidentiary and procedural issues to arise during this phase of the trial.

It is up to the trial court judge to resolve these issues, subject to review by the appellate court if either party seeks a review of the trial court’s decision(s) in this regard.

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Massachusetts medical malpractice law requires that a party who is seeking to assert a claim of negligence against a health care practitioner provide proof of his or her claim before a malpractice review tribunal before his or her case can proceed to a regular court of law.

If the tribunal does not find enough evidence for the case to continue, the plaintiff does have an “out,” in that he or she can post a bond. If this is not economically feasible, the plaintiff also has the option of appealing the tribunal’s decision to the appellate court for further review.

Facts of the Case

In a recent wrongful death case considered by the Massachusetts Appeals Court, the plaintiff was the personal representative of the estate of a 29-year-old woman who died while under the care of the defendant doctors and others. The decedent presented herself at the hospital when she was 38 1/2 weeks pregnant, complaining that she was in labor. She was in good health and had given birth two two children previously. She died at the hospital some 25 hours later.

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