Articles Tagged with Hospital

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hallwayIn March of 2008, Frank Battaglia was a resident and patient of the Concord Health Care Center in Concord, Massachusetts.  Mr. Battaglia alleged that the Defendant Health Care Center had a duty to provide competent nursing and other care to the Plaintiff.  Additionally, the Plaintiff alleged that the Defendant negligently failed to provide proper and competent care, it carelessly and negligently failed to design and adhere to an appropriate plan of Care, it negligently failed to provide a safe living facility and environment to the Plaintiff, it failed to provide adequate and proper supervised care as needed, and it failed to properly assess and monitor the Plaintiff’s underlying medical condition.  As a result of the purported negligence by the Health Care facility, the Plaintiff alleged that he was caused to suffer permanent loss of function and mobility and ultimately filed a suit that proceeded to the United States District Court in Massachusetts.

In addition to the negligence claims brought above, the Plaintiff claimed a violation of Massachusetts General Law Ch. 93A, the consumer protection statute.  The Plaintiff alleged that while the Defendant was engaged in a trade or commerce (as defined by the statute) the Defendant misrepresented the quality of the services it would provide and failed to provide services in compliance with existing state and federal statutes, rules, and regulations.  As such, it was alleged that these actions (or inactions) rose to the level of unfair or deceptive trade practices for purpose of the statute, which allows for triple damages and the possibility of attorney’s fees in certain circumstances.  The Defendant filed a motion for summary judgment in response to the Plaintiff’s 93A claim.

The Health Care facility argued that the Chapter 93A claim should be dismissed based on a previous ruling by the Supreme Judicial Court in Darviris v. Petros, 812 N.E.2d 1188 (Mass. 2004).  In that case, the court held that medical malpractice was not remediable under Chapter 93A.  However, the court did hold that a Chapter 93A case may be allowed in certain circumstances.  Specifically, the court wrote: Continue reading →

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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 →
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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 →

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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.

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