Articles Tagged with med mal

Published on:

hospital-corridor-1057587-mKimiyoshi Matsuyama went to his doctor’s office for a routine physical examination. Medical records of the visit indicate that Mr. Matsuyama complained of heartburn and difficulty breathing that was associated with eating and lifting. Mr. Matsuyama’s doctor, Dr. Birnbaum, did not order any tests to determine the origin or cause of his patients complaints. At a subsequent trial, Dr. Birnbaum testified that he was aware that Mr. Matsuyama had a history of smoking and was at significantly higher risk for developing gastric cancer than was the general population of the United States. Instead, the doctor diagnosed his patient with gastrointestinal reflex disease and recommended over the counter treatments.

Dr. Birnbaum treated Mr. Matsuyama for approximately three more years. Each time that Mr. Matsuyama complained of an ailment or discomfort he was experiencing (such as a suspicious mole), he was told that it was not something to be fearful of. Subsequently, a mass was found in Mr. Matsuyama’s stomach and he was diagnosed with infiltrative gastric adenoid carcinoma. He began treating with specialists for his condition and subsequently passed away due to the gastric cancer.

The Estate of Mr. Matsuyama brought a complaint against the Defendant Doctor alleging wrongful death. The complaint alleged that Dr. Birnbaum breached the applicable standard of care in evaluating and treating Mr. Matsuyama which resulted in his death. An expert retained by the estate opined that, “in light of Matsuyama’s complaints, symptoms, and risk factors, including the presence of H. pylori, his Japanese ancestry, his having lived in Japan or Korea for extended periods, his smoking history, and other well-known risk factors, an internist exercising the expected standard of care would have ordered an upper gastrointestinal series X-ray or an endoscopy, or referred Matsuyama to a specialist for endoscopy, beginning in 1995.” The Estate argued that had the doctor ordered the appropriate testing as early back as 1995, the cancer that Mr. Matsuyama ultimately died of would have been diagnosed and treated in a way where it may have been curable. 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 →