Medical Malpractice Attorneys in Boston, Massachusetts
Boston Medical Malpractice Attorneys
The concept of medical malpractice is thought to have been around for 4,000 years or more. During the reign of Babylonian king Hammurabi a set of commercial edicts and measures for fines and punishment were recorded.
Among these rules were several that set out the “lex talionis” or law of retribution. This is also commonly referred to a “an eye for an eye”. A specific reference to medical malpractice states that “if the doctor has treated a gentleman with a lancet of bronze and has caused the gentleman to die, or has opened an abscess of the eye for a gentleman with a bronze lancet, and has caused the loss of the gentleman’s eye, one shall cut off his hands”. The degree of retribution was determined by the financial or social standing of the victim. In the case of a slave, the penalty would have been merely financial.
Medical malpractice continued to be recognized throughout time. A continuous chain of decisions has been traced all the way back to the 12th century Court of Common Law and the Plea Rolls.
Although cases have been recorded in the US since the 19th century, it was only since the 1960s that cases became particularly common and started impacting the profession.
What is Medical Malpractice
US law is very specific about what constitutes malpractice. For a case to succeed, three things must be proven.
- That there was a failure to uphold the professional duty of care to which the plaintiff was entitled.
This means that a doctor-patient relationship had to exist at the time of the alleged malpractice. The plaintiff must have willingly engaged the practitioner who, in turn, must have willingly accepted the engagement.
This is usually fairly easy to prove. When the plaintiff was in a direct person to person interaction with the practitioner, the existence of this relationship cannot be disputed. The difficulty arises with practitioners who act in a consultative capacity where they have not treated the patient directly.
The law further sets standards of care. These standards are recognized by the medical profession as being a level of care that can reasonably be expected to be provided by a competent and prudent physician operating under the same or similar conditions.
Once it has been established that the standard of care was not upheld, then negligence or failure has been established.
- That the negligence or failure caused an injury.
It is not enough to merely show the existence of the negligence or a failure. It must be further demonstrated that the plaintiff suffered an injury or condition that would not have occurred without the negligence or failure. The injury or condition must be shown to have been a direct consequence of the negligence.
- That the injury or condition has caused damages to the plaintiff.
Damages are mostly economic and would usually consist of the direct cost of treatment for the injury or conditions. It would commonly also include loss of income, both past and future and the cost of equipment or changes necessary in order to lead a normal life. Sometimes non-economic damages are claimed to as compensation for extreme pain and suffering. Such pain or suffering can be physical or mental.
A common attribute with damages is that they are intended to compensate the victim. Punitive damages, on the other hand, are intended more to punish the negligent party. Although punitive damages are allowable in Massachusetts law, they are rare. Punitive damages can only be claimed in cases where a practitioner’s behavior is shown to be offensive and with reckless disregard of the patient’s rights or those of others.
Fees and Costs of Medical Malpractice Lawsuits
Medical malpractice lawsuits are very expensive. Very often teams of experts are engaged in order to support medical facts or opinions. Most cases run for many months and costs can run into the hundreds of thousands of dollars.
For this reason, people are generally advised to pursue a claim only if the damages were substantial. It is also customary, these days, for medical malpractice attorneys to work on a contingent fee basis. This means that the attorneys cover the cost of fighting the case in exchange for an agreed share of any damages won.
The contingent fee varies but is usually around the 30% mark. Attorneys will usually recover the costs of the lawsuit first before splitting the remainder with their client. The client will usually not incur any costs at any stage of the lawsuit and stands only to gain in the event the case is successful.
Settlement or litigation?
Another interesting fact is that many personal injury cases are settled out of court without them ever going to a jury. In cases where a plaintiff’s case is strong enough, the lawyers may be able to more easily convince the defendant to settle the case and avoid running up unnecessary expenses. In fact, for this reason many US states have promulgated laws to require pretrial screening of cases.
Under the laws of Massachusetts, all medical malpractice cases have to be reviewed by a tribunal before a claim can be filed. The tribunal will consist of a justice of the superior court and a physician and attorney who are both authorized to practice in the state. The tribunal hearing has to be held withing 15 days of the defendant filing their Answer in the court. The tribunal’s mandate is to review the details of the claim and the evidence provided by the plaintiff in order to assess whether the claim is viable. A plaintiff can overcome an unfavorable ruling of the tribunal by posting a bond for costs.
Statute of limitations and exceptions for Medical Malpractice Lawsuits
The deadline for bringing a suit in Massachusetts is three years. This three-year period, however, commences only when a victim becomes aware of the injury or condition, or should reasonably be expected to have become aware of it.
Massachusetts law protects public employees. To sue a public employee, a case is brought against the state of Massachusetts. If the case succeeds, compensation is limited to $100,000.
The Commonwealth of Massachusetts enacted the Good Samaritan Law in 2012. The law protects members of the public who assist or attempt to assist crime victim, in good faith. No civil suits for damages can be filed against such people for the consequences of any act or omission while helping or trying to help, unless those acts constitute wanton, reckless or willful conduct.
There is, however, no Massachusetts law that obligates a member of the public to assist. Whilst the Massachusetts law has created a duty to report, it has not created a duty to help.
Summary
Summing up, whilst medical malpractice litigation can run up extremely high cost through a Massachusetts law firm, it is can sometimes cost more for an individual to fight a case alone including lesser compensation. The stakes are high and practitioners and insurance companies will defend their interests with all the tactics they can legally bring to bear.
The law firms are often very experienced in claims of this type and are better geared to put of a strong and efficient case. Coupled with the contingent fee approach applied in almost all claims, it would be almost foolhardy to try an individual approach.
To file a Boston, Massachusetts, medical malpractice personal injury case, contact The Injury Firm, the foremost Boston medical malpractice attorneys.