Articles Posted in Medical Malpractice

In most Cape Cod medical malpractice lawsuits, the defendant health care provider has a policy of professional negligence liability coverage in place to protect his or her personal assets in the event of a judgment against him or her. Typically, the medical professional is only personally liable to the extent that a judgment is awarded by a jury in excess of the policy limits.

A recent case raised the issue of whether a medical malpractice insurance company must obtain permission from its insured before settling a claim within the policy limits.

Facts of the Case

Medical malpractice lawsuits are expensive and procedurally difficult. This is not to say that a plaintiff cannot be successful in an attempt to hold a negligent doctor liable in a particular case, but only that doing so can be much more difficult than, for example, holding a negligent driver liable in a motor vehicle accident case.

One of the main reasons for the difficulty in pursuing a medical malpractice case is the requirement for expert proof as to the medial professional’s deviation from the standard of care.  Just as medical care itself is costly, so, too, is hiring a medical expert to testify as to a mistake made in the plaintiff’s treatment.

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Under Massachusetts medical malpractice law, the burden of proof is on the plaintiff to prove, by a preponderance of the evidence, that the defendant health care provider violated the applicable standard of care.

First, however, the plaintiff must find an expert witness who is willing to testify in court as to what the standard of care required – and how the defendant’s actions or inaction violated this standard.

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Purportedly to combat the growing problem of frivolous medical malpractice lawsuits, the Massachusetts legislature passed a law (codified at Mass. Gen. Laws ch. 231, § 60B) several years ago, requiring the plaintiff in a medical negligence case to submit an “offer of proof” to a three-member reviewing tribunal after filing a formal lawsuit against a doctor or another medical professional. The tribunal consists of a judge, a physician (or another health care provider), and an attorney.

If the tribunal determines that the plaintiff has presented sufficient evidence to raise a “legitimate question of liability,” the matter proceeds toward trial. If not, the plaintiff has the option of posting a filing bond of $6,000 (in most cases, although that amount can vary) or having his or her case dismissed.

If the case is dismissed, the plaintiff may appeal that decision to a higher court for review.

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When a litigant who is unsatisfied with a trial court’s ruling files an appeal, the burden is on that appellant to convince the higher court that a mistake was made in the court below.

This can be a difficult task, especially when one of the grounds for the appeal is the alleged bias or favor of the trial court judge.

Facts of the Case

In a recent malpractice case decided by the Massachusetts Appeals Court, the plaintiffs were the parents of an infant who died just days after her birth. The plaintiffs’ medical malpractice and wrongful death claims resulted in a jury verdict in favor of the defendant medical providers. The plaintiffs appealed the trial court’s denial of their motion for a new trial, alleging that the trial judge had made various mistakes in her evidentiary rulings and instructions to the jury. The plaintiffs also averred that the trial court judge had engaged in “persistent favoritism and biased conduct” toward the defendants.

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In order to seek compensation from a person or business for injuries caused by negligence, the aggrieved party must file suit within the applicable statute of limitations. In Massachusetts, the limitations period for medical malpractice is three years.

In cases in which a statute of repose is also in effect, the plaintiff must also file his or her case within this period. Under the Massachusetts statute of repose, the plaintiff must file suit not only within three years after the cause of action accrued (the moment at which the plaintiff knew or should have known about the alleged act of negligence) but also within seven years of the alleged act or omission (except in cases involving foreign objects left inside the patient’s body).

Unless both of these time limits are met, the plaintiff cannot prevail.

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Under Massachusetts law, a person who alleges that his or her physician committed an act of medical negligence must submit an offer of proof to a medical malpractice tribunal in order for his or her lawsuit to move forward. If the tribunal decides that there is not sufficient evidence to support the plaintiff’s claim, the plaintiff has the option of posting a cash bond in order to proceed to trial. The bond, of course, is designed to deter patients from proceeding.

Alternatively, the plaintiff can allow the trial court to dismiss the case and then file an appeal, as happened in a recently decided case. An appeals court has the authority to decide whether or not the tribunal was correct in its decision regarding the sufficiency of the plaintiff’s evidence.

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About a year ago, we shared with you a Massachusetts Court of Appeals decision in a malpractice case in which the issue was whether or not suit had been filed within the three-year statute of limitations set forth under Massachusetts law.

The intermediate appellate court decided that the case was timely filed under the continuing treatment doctrine. Since that time, however, the state’s highest court has reviewed the case and decided otherwise.

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Most people understand that there are statutes of limitations that govern the time that an injured person has to bring a claim in a court of law. There are numerous other issues of timeliness, however, of which the general public may be less aware.

One of those issues – the notice period for a medical malpractice lawsuit – was at issue in a recent appellate court decision.

Facts of the Case

In a case recently decided by the Massachusetts Appeals Court, Arsenault v. Bhattacharya, the plaintiff was a woman who sued her primary care physician, seeking redress for alleged medical malpractice in the treatment of the her wrists. The woman’s complaint was filed on October 21, 2013. The defendant first began treating her for carpal tunnel and cervical spondylosis with radiculopathy in January 2008.

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