Articles Posted in Medical Malpractice

Published on:

to-sign-a-contract-3-1221952-mAs previously discussed, the Wrongful Death statute in Massachusetts allows for the Personal Representative of an Estate to commence an action for damages against a Defendant for his or her negligence which causes death. In the past few years, issues have arisen as to whether such a law suit can commence when the person who has died (the decedent), or their representative, has previously signed an agreement with the Defendant that limits court actions in favor of binding arbitration. The Supreme Judicial Court of Massachusetts has recently had an opportunity to decide this very issue in Johnson v. Kindred Healthcare, Inc., as well as a slew of companion cases.

In the Johnson matter, Dalton Johnson was admitted to a nursing care facility operated by the Defendant organization. Prior to his admission at the nursing facility, he had executed a health care proxy which authorized his wife to act as his “health care agent” relating to “health care decisions.” In her capacity as Health Care Proxy, the wife of Mr. Johnson admitted him into the facility for long term care and treatment. As part of the admission process, she was asked to sign an agreement with the Defendant to submit any disputes that arise between the parties for resolution by mediation and/or arbitration (often referred to as an “arbitration agreement.”) Approximately one year later, Mr. Dalton suffered severe burns and was taken to a hospital where he succumbed to his injuries. The wife of Mr. Dalton brought suit against the Defendant claiming a variety of claims predicated on Wrongful Death.

Continue reading →

Published on:

gavel-952313-mAfter an individual has made proper presentment of his or her claims to a health care provider pursuant to 60L (as discussed previously), the individual may file a claim in the proper court in Massachusetts. Once litigation has commenced a Plaintiff has an additional burden to overcome before the case may proceed on its merits: the medical malpractice tribunal.

Under Massachusetts General Laws Ch. 231, § 60B, any time an action is commenced against a health care provider for malpractice, error or mistake, the parties will be required to go before a tribunal consisting of a Judge, a health care provider in the same field as the Defendant, and a lawyer licensed to practice in Massachusetts. At the tribunal, the Plaintiff will provide an offer of proof for the tribunal members to determine if there is sufficient evidence to raise a legitimate question as to the liability of the health care provider or if the case is merely an unfortunate medical result. The Plaintiff is required to produce an offer of proof (a written document) that contains substantial evidence that the Defendant:

  1. is a provider of health care,
  2. who deviated from the applicable duty of care owed to the Plaintiff,
  3. thereby causing damage to the Plaintiff. Continue reading →
Published on:

law-education-series-3-68918-mIn order to bring a suit against a health care provider in Massachusetts there are two hurdles that every aggrieved individual must overcome: a 60L notice of intention to sue letter and a medical malpractice tribunal. This entry will focus on the former- the notice to sue letter.

 In November of 2012 a new law went into effect that greatly changed the landscape of a medical malpractice claim. As a prerequisite to filing suit in Massachusetts against a health care provider, the Commonwealth requires that an aggrieved individual give the health care provider (or institution) 182 days notice prior to commencing an action in court. This notice is to be in writing and sent to the last known professional business address or residential address of the health care provider. The notice letter is often referred to as a “60L notice of intention to sue letter.”

 The 60L letter has certain requirements that must be met in order for an individual to pursue his or her claim in a court of law. First, the aggrieved party must state the factual basis for their claim. Generally, this means that the individual must expound upon the circumstances bringing about the complained of activity- whether for a surgical instrument that was left inside the body, or a health care provider’s failure to diagnose a certain condition. Second, the complainant must state the “applicable standard of care” of the health care provider as well as an indication as to how the health care provider failed to adhere to that standard. Put another way- the complainant must state what the health care provider was supposed to do relative to the care and treatment of the patient, and how they failed to conform to the rules of medicine with the complainant. Generally, this requires the knowledge and/or guidance of a medical expert that supports the complainant’s claim. Continue reading →

Published on:

ambulance-1334534-mIn the past few months there have been lawsuits against the Mirena intrauterine device (IUD) which is used for contraception. Many women have been using this device for birth control as it was represented as being safer than oral contraceptives that were on the market. Today, approximately over 2 million women are using the IUD. However, not all women have been satisfied with the results of the device. There have been claims from around the country that the device has led to side effects including miscarriages, excessive bleeding, extreme stomach and abdominal pain, and even hysterectomies. Bayer Pharmaceuticals, the manufacturer of the Mirena IUD, is being sued on the ground that it failed to warn women of certain risks associated with the device; that the product was defective and inherently dangerous; and that the label of the device was unfair and/or deceptive as it listed certain risks as uncommon when in fact they were common.

While the cases around the country proceed, the question has been presented, what is the role of a medical device or drug manufacturer in relation to that a of prescribing physician? Generally speaking, a manufacturer is ultimately responsible for any and all products it puts into the stream of commerce to the hands of a consumer. However, in Massachusetts (along with states across the country) courts utilize the “learned intermediary doctrine.” Under this theory, a manufacturer or supplier of a prescription drug is relieved from any duty to warn patients of the dangerous qualities of the prescribed drug. 

The underlying theory behind the learned intermediary doctrine is that the physician acts as the “informed intermediary” between the patient and the manufacturer. As such, the physician is best suited to understand the complicated directions, warnings, risks, and implications of that drug. Once the physician is apprised of this small print, he or she informs the patient who makes the ultimate decision as to whether they want to use the drug or device. In the event that a manufacturer fails to include all relevant warnings and directives to the doctor, such as with the IUD case mentioned above, an injured patient may sue the manufacturer for breach of its duty to the physician.  Continue reading →

Published on:

medical-doctor-1314902-mAn Oregon woman went to the emergency room for treatment of symptoms including an inability to walk due to severe low back pain and weakness in her legs. The resident charged with evaluating this patient placed a phone call to the on-call Neurosurgeon. The resident indicated that the patient had a bulged disk, and asked the Neurosurgeon for his advice as to whether this particular patient should be admitted to the neurology department for further testing and evaluation. Based on the limited information provided to the Neurosurgeon, he determined that the patient should be admitted- but not to neurosurgery. Instead, the Neurosurgeon advised that the patient should be admitted for pain management. Four days later it was determined that the patient was suffering from cauda equina syndrome, a serious neurologic condition. What was once thought of as a “bulged disk” was actually a herniated disk. This herniated disk was pressing on a sheath of nerves (the cauda equina) that control a person’s ability to move their legs and control certain bodily functions.

Once the severity of the situation was understood, the patient was immediately operated on to alleviate and remove the pressure. Unfortunately, the delay from the patient’s initial presentation to the hospital and subsequent surgery resulted in permanent damage to her ability to control her bladder and bowel functions. The patient brought suit against various providers, including the Neurosurgeon who was initially contacted and who had advised against neurosurgery. The patient argued that if she had been brought to neurosurgery for treatment and evaluation earlier- she would not have suffered the permanent injuries she sustained due to the delayed diagnosis. The question became- was there actually a doctor-patient relationship between the patient and the Neurosurgeon?

In Massachusetts, like in most jurisdictions such as Oregon, in order to have a medical negligence claim (also known as a medical malpractice claim), a person must show:

  1. A doctor-patient relationship existed;
  2. the doctor failed to conform to good medical practice;
  3. the doctor’s negligence caused the patient’s injury.

In the case mentioned above- it was determined that there was no doctor-patient relationship between the on-call Neurosurgeon and the patient. As a result, the patient was unable to meet the first hurdle of proving her medical malpractice claim. A doctor-patient relationship exists, for the purpose of a medical malpractice action, when the doctor participates in the care and treatment of the patient. This relationship must exist at the time when the patient suffers from the injury he or she complains of. The case in Oregon determined that merely providing advice to a colleague about that colleague’s patient does not give rise to a doctor-patient relationship. The colleague is only offering an opinion, not a course of treatment or diagnosis. The consulting physician has limited information that is based on what the treating doctor believes is relevant and crucial for any possible diagnosis. The colleague, who does not have the benefit of using his or her own senses to make a first-hand determination, may not know that they are rendering a decision affecting a specific patient- or just rendering advice to a hypothetical question. Continue reading →

Published on:

ERWhen people suddenly fall ill or are sustain and accidental injury, their first stop is often the closest hospital emergency department.  While hospitals exist to provide for the medical needs of the public, they also must remain financially viable. As in any situation where goods or services are exchanged for money, there is an inherent desire on the part of administrators to keep operating costs down. When hospitals cut staff, they increase the risk of overworked employees making mistakes and not being able to maintain an adequate standard of care for their patients, sometimes with catastrophic results. It is important for anyone who believes that they or a loved one has been injured due to hospital understaffing to contact an experienced Framingham personal injury attorney as soon as possible.

Continue reading →

Published on:

WheelchairAs our population ages, more and more Americans will turn to nursing homes and other long-term care facilities to meet their changing medical needs. While most of these facilities provide professional and high-quality care, sometimes nursing home residents are the victims of neglect or even intentional mistreatment. When those charged with caring for others fail to adequately perform their duties, victims may be able to recover by filing a personal injury lawsuit. Nursing homes and other facilities offering long-term care are subject to both state and federal regulation, and there are a number of ways in which these facilities or their staff could potentially violate these laws. If you feel that you or a loved one has been injured by nursing home abuse or neglect, you should be certain to discuss your case with an experienced Framingham nursing home attorney as soon as possible.

Continue reading →