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The Hurdles of Medical Malpractice: Part Two

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.

The biggest obstacle in providing proof of these matters concerns elements two and three above- proving the standard of care and causation elements. Typically, to prove the standard of care (and subsequent causation factor), the Plaintiff provides an affidavit or letter from a qualified expert stating that the Defendant health care provider deviated from the applicable standard of care or otherwise committed medical malpractice, error or mistake. A medical expert needs to be retained that has sufficient background, education, experience, and training in the same area of law as the Defendant health care provider. So, if a Plaintiff is bringing a claim for medical malpractice against a surgeon, that Plaintiff must provide a letter from a medical expert in surgery to give his or her opinion to the tribunal members. The expert surgeon’s letter may detail that based on his or her own qualifications as an expert, the Defendant deviated from the standard of care for the average practicing surgeon in Massachusetts, and this action (or inaction) was the substantial cause of the Plaintiff’s subsequent injury or damages.

The tribunal members then decide whether or not the Plaintiff has provided sufficient evidence to raise a legitimate question of liability as to the Defendant’s actions (or inaction). The standard is a lenient one that views the evidence in a light most favorable to the Plaintiff. In the event that the Plaintiff fails to convince tribunal members, the Plaintiff can only proceed with his or her case by filing a bond with the court in the amount of six thousand dollars. If the Plaintiff does not provide a bond made payable to the Defendant(s), or fails to showcase why this is a monetary hardship to the Plaintiff, his or her case will be dismissed.

In the event that the Plaintiff is successful at the tribunal, the tribunal will issue a decision that there is sufficient evidence of liability for litigation to continue. At this time, the discovery process will commence (or resume) and there will be an exchange of information between the parties. The Plaintiff will typically go through a deposition and be asked to answer a set of written questions (interrogatories) and respond to requested documents by the Defense. In turn, the Defendants may be deposed, be required to answer interrogatories, and provide documents such as hospital policies, a curriculum vitae, work history and schedules, and other like documents.

For more information on this, please see Massachusetts General Laws Ch. 231, § 60B.  If you believe you have a medical malpractice case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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