Your Boston Medical Malpractice Case: The Basics

You signed a release form before surgery, but there is no excuse for leaving a foreign object inside your body. Now you lay in a Boston Medical Center cot while busybody nurses keep you under 24-hour supervision. Your family is worried sick, you can't even walk without assistance and no one can give you a straight answer to, "who is going to pay for this?" Medical malpractice law is more complicated than you'd think, which is why FindLaw has created this guide to inform you generally about a Boston medical malpractice case.

Time Limitations

Every lawsuit has a ticking clock counting down the time until your claim becomes stale. This is called the statute of limitations, and once time has expired you will forever be barred from bringing a claim regardless of its strength. The time period varies by state and by claim type, but the Massachusetts statute of limitations provides three years from the date of the incident to bring your claim.

Some injuries caused by malpractice aren't obvious, so the statute is tolled for the time it takes to discover the injuries and their cause. The Massachusetts "discovery of harm" rule gives you three years from the date you discovered, or reasonably should have discovered, the injury. However, all medical malpractice suits (except involving foreign objects left inside the body) must begin within seven years of the incident, regardless of the date of discovery.

Who to Sue

You probably have grounds to file a lawsuit against either the doctor who injured you or the hospital that employs the doctor. The doctrine of "respondeat superior" provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment.

A hospital can also be sued independently under the "corporate negligence" doctrine. For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.

You may also have a products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects that you were not made aware of, or against the company that designed or manufactured a defective medical device.

Missteps, especially at the beginning of a lawsuit, are exceptionally easy to make. Avoid omitting a crucial defendant by scheduling a free consultation with an experienced medical malpractice attorney. Most personal injury lawyers work on a contingency fee basis, which means they are paid a portion of your recovery. Yes, they won't get paid until you win the case.

Medical Negligence

Medical malpractice cases are essentially negligence cases where the defendant is a medical professional. Medical malpractice liability can come from the doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care, and this failure caused your injuries.

While everyone is held to a reasonable standard of care as they go about their daily business, doctors are expected to conform to a much higher standard than the average person. In general, doctors must recommend and perform treatment as a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

The key to a successful case is proving to the judge or jury exactly what the expected standard of care was under the circumstances, and how your doctor failed to live up to that standard. This proof must be as specific as possible, and most judges or jurors have little to no knowledge of standard medical procedure. This means that expert witnesses in the specific medical field are crucial to your case, who may provide testimony detailing exactly how the doctor failed to perform in accordance with the generally accepted medical standard.

Informed Consent

If someone touches you in a harmful or offensive manner, you can pursue a lawsuit for battery. However, individuals can hurt each other all they'd like if they've received consent from each other, for example a boxing match. Similarly, a doctor must receive consent from his patients before performing any potentially harmful surgery or treatment options.

Specifically, a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's "informed consent" to proceed. There are three general components to informed consent:

• a disclosure informing the patient all the risks, benefits and alternatives of the treatment;
• comprehension of the disclosure by the patient, and;
• a voluntary (non-coerced) waiver or "release," executed by the patient.

Damages

Your recovery in medical malpractice cases will include economic and non-economic damages. Economic damages are easily quantifiable financial burdens associated with the injury, such as medical bills or loss of income from inability to work. There is no upper limit to the amount of economic damages you may recover.

Non-economic damages are sometimes called "pain and suffering" damages because they are designed to compensate you for the mental and physical distress you suffer as a result of your injury. They include compensation for your pain and suffering, lost enjoyment, anxiety, disfigurement, and other effects of the defendant's medical negligence. These kinds of damages aren't easily captured by a dollar figure, so are more subjective from plaintiff to plaintiff.

In Massachusetts, non-economic damages in most medical malpractice cases are limited to $500,000, subject to some exceptions. Specifically, the cap on non-economic damages doesn't apply if you demonstrate that your injuries include a substantial or permanent loss or impairment of a bodily function, or substantial disfigurement, or if some other special circumstance exists which warrants a finding that use of the cap would deprive your of fair compensation for his or her injuries.

Check out this section to learn more about medical malpractice law generally or you may want to contact a medical malpractice attorney for information specific to your case.