One Surgeon Supervising Two Separate Operating Rooms: Medical Malpractice; Yes or No?

Posted in Blog by on March 13th, 2017

By: Attorney Kevin J. O’Malley| Partner

Massachusetts-Attorney-Medical-Malpractice-Double-Surgery Two Complicated Spinal Surgeries, Two Separate Operating Rooms, Surgeries Performed at the Same Time, One Surgeon Supervising Both Surgeries, One Patient Is Left a Quadriplegic, Medical Malpractice; Yes or No?

Last month the Boston Globe reported on a case tried in Suffolk Superior Court where a 45 year old father of two brought a lawsuit against Massachusetts General Hospital and his surgeon because the patient was left a quadriplegic after complicated spinal surgery. The essential allegation was that the surgeon, who was supervising another complicated spinal surgery in another operating room at the same time, failed to disclose that he would be supervising simultaneous surgeries in separate operating rooms and that the surgeon’s divided attention caused the quadriplegia. The jury found in favor of the defendants.

Medical malpractice cases are often complex and require an exceptional grasp of both the legal issues and the technical aspects of medicine. Hospitals and doctors vigorously defend medical malpractice cases. You can be sure that, if you or a loved one had what you believe is a bad medical result, the doctor and hospital have already thoroughly investigated the situation and have already contacted their insurers and attorneys to defend them should a medical malpractice claim be made.

It is imperative that, if you or a loved one believe you have been harmed as a result of the negligence of a medical professional, you immediately consult with counsel to evaluate your case, gather the medical records and do the necessary investigation on your behalf to determine whether there is a viable claim for medical malpractice. Again, be assured that the doctor and the hospital are preparing their case as you sit idly by.

What is Medical Malpractice?

Medical malpractice is, simply put, negligence which occurs in the field of patient care. Like any negligence case, the basic elements are duty, breach, causation, and harm.

Duty

Did the medical provider owe you or your loved one a duty of care? This is perhaps the simplest element of a case. If you or your loved one was treated by a medical provider, then that medical provider owed you a duty to use generally accepted practices and procedures used by medical professionals in your specific geographic region.

Breach of the Duty

Did the level of care provided by the medical provider (be it doctor, nurse, surgeon, nurse’s aide, etc.). fall below the accepted practices and procedures in your area? Breach of the duty of care i.e. providing care below the accepted standard, is almost always, except in the most egregious cases, a question of opinion. Again, rest assured, that if you or your loved one have suffered a bad end medical result, the doctor, hospital and their insurers are consulting experts in order to obtain favorable opinions should a
case be filed. It is especially important to consult an attorney sooner rather than later so that your attorney can consult notable experts in the particular medical specialty to secure an opinion as to whether or not the care provided was substandard.

Causation

Even if a medical provider treated you and even if the care provided was substandard, if the breach of duty did not cause your poor medical result, there can be no recovery. Again, causation will likely be the subject of expert medical opinion so the sooner you consult an attorney, the better.

Harm

Did the substandard care provided to you by your medical provider which caused your poor medical result cause harm? If the answer is yes, then you have a medical malpractice claim for which you may recover damages. If the answer is no, then there is no medical malpractice claim for which you can recover damages. What kind of damages are compensable? Under Massachusetts law, a plaintiff may recover no more than $500,000.00 for pain and suffering, loss of consortium or companionship, embarrassment any other general damages under most circumstances. In addition to general damages, a successful plaintiff in a medical malpractice case in Massachusetts can recover compensatory damages like reimbursement of expenses such as medical costs and reimbursement of lost wages (both past and future).

Conclusion

The consequences of medical negligence can be catastrophic. Lives are turned upside down, bills can’t be paid because you are unable to work. The stress on you and on your immediate and extended family and friends can be overwhelming. If you or your loved one has experienced a bad medical result, while you are in the midst of all this tumult, the doctor, the hospital, and their insurance companies are building a defense against your claim. It is important that you contact us now if you think you might have a claim for medical negligence so that we can evaluate it, investigate it, seek medical opinions about the level of care you received and come to an informed decision as to whether or not there is a viable case for medical negligence.

In order to prosecute a medical negligence case, it takes experience and it takes horsepower. As one of the largest firms in southeastern Massachusetts over the last forty years, we have the resources to successfully litigate a medical negligence case for you. If you or a loved one believes you have been the victim of medical negligence, please call today 1.800.852.5211 or request a free consultation!

MEDICAL MALPRACTICE OR UNFORTUNATE MEDICAL END RESULT?

Posted in Blog, Personal Injury by on September 21st, 2015

Medical Malpractice-Massachusetts-Taunton-AttorneyBy: Dina M. Swanson | Partner

You or a loved one may have recently undergone surgery or visited a doctor and unfortunately, did not receive the results you expected. You may be wondering if there is a claim for medical malpractice or just an unfortunate medical result.

Medical malpractice occurs when a patient suffers damage while under the treatment of a medical professional. But what constitutes medical malpractice sufficient that there is a claim against that medical provider? Massachusetts law determines a legitimate medical malpractice claim. Medical malpractice is a form of negligence.

ELEMENTS OF THE CLAIM

In order to establish a claim for medical malpractice in Massachusetts, one must establish 1) the medical provider was negligent by breaching the standard of care owed to his or her patient; 2) the negligence of the medical provider caused injury to that patient; and 3) the patient suffered damage as a result.

BURDEN OF PROOF

In Massachusetts, expert testimony from a medical provider in the same field as the provider alleged of medical malpractice, must be presented to establish the provider was negligent and the patient suffered damage as a result. Another expert is required to establish the patient suffered damages as a result.

WHEN MUST A CLAIM BE BROUGHT?

In Massachusetts, a medical malpractice case must be filed in the appropriate court within three (3) years of the date of the injury. However, there are some exceptions to this rule. If the malpractice is not known or reasonably knowable, then the clock for filing an action does not begin until the plaintiff becomes aware of the injury or the malpractice, otherwise known as the Discovery Rule. Once the malpractice and/or injury is known or reasonably knowable, the clock begins to run and a claim must be brought within three (3) years of that time.

An exception to that rule is when medical malpractice involves a child under the age of six (6). In that scenario, suit may be commenced up to six (6) years following the medical malpractice or discovery of the medical malpractice. However, the suit must be brought by the child’s ninth (9th) birthday regardless of the date of discovery.

Although the Discovery Rule extends the time for bringing a medical malpractice action, a deadline for all claims is imposed in Massachusetts by the Statute of Repose. Pursuant to the Statute of Repose, no suit for medical malpractice may be brought more than seven (7) years after the negligent act occurred unless the case involves a foreign object left in the body following a procedure.

CAPS ON DAMAGE IN MEDICAL MALPRACTICE CASES

In Massachusetts, a plaintiff may not recover in excess of Five Hundred Thousand Dollars ($500,000.00) for pain and suffering, loss of consortium or companionship, embarrassment and any other general damages, unless a jury determines there was a “substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstance in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.” Mass. General Laws, Chapter 231, §60H.

Furthermore under Massachusetts law, damages against a charitable organization are limited to Twenty Thousand Dollars ($20,000.00). This cap serves to limit the liability against charitable employers, however, it does not cap the damages against a responsible employee, i.e. a nurse or doctor.

DAMAGES

A plaintiff who has been damaged by medical malpractice in the state of Massachusetts may make a claim for compensatory damages to reimburse a patient for certain expenses, such as medical costs and lost wages. A plaintiff may also seek non-economic damages for intangible damages, such as pain and suffering.

Lastly, Massachusetts permits a plaintiff to seek compensation for punitive damages which are damages intended to punish the health care provider for willful misconduct. These damages are rarely awarded in Massachusetts, but are available in cases where a patient suffers damage as a result of the willful misconduct of a medical provider.

Medical malpractice cases are extremely complex and can take years to resolve. If you feel as though you or a loved one may have a claim for medical malpractice, it is essential that you act immediately in order to protect your rights.

If you have any questions, concerns or a potential case, please contact our office at (508) 823-4567 or send an e-mail to Attorney Dina M. Swanson at dswanson@wynnandwynn.com.