Medical malpractice is the leading cause of accidental death in the United States. A staggering 98,000 patients die from preventable medical errors each year.  And according to the federal Centers for Disease Control and Prevention, another 99,000 patients succumb to hospital-acquired infections every year.  Almost all of those 200,000 deaths are considered preventable.  And when we consider the underreporting of medical errors, this number is really just the tip of the iceberg.

The aim of medical malpractice law is justice for victims of preventable medical error.  At its core, medical malpractice is just like any other negligence claim.  When a patient engages a physician to provide medical care, that physician owes a legal duty to take reasonable steps to conform to a certain medical standard of care.  The duty owed is that which the medical community in that specialty considers to be the minimum baseline standard for a reasonable physician.  If the physician deviates from or breaches that standard and causes injury to patient, the physician can be held legally responsible for monetary damages caused by the breach.

By and large, Massachusetts law favors physician-defendants in medical-legal cases.  They are given unique legal rights, at the expense of plaintiff-patients, that are unheard of anywhere else in Massachusetts personal injury law. 

A.        Medical Mapractice: The Real Problem.

Preventable medical error is a national health problem.  Ironically, the major obstacle to solving the problem is the medical malpractice insurance industry and medical group lobbyists.  Loath to acknowledge the wide scope of this problem, the medical community lobbies against a national mandatory reporting system for preventable hospital deaths and medical errors.  Such a system would allow for a unified national strategy to address recurring preventable health issues, like surgical infection, undetected cancer, bowel perforation, or missed spine fractures.  Physician’s groups jealously guard their professional discretion and often refuse to admit an error even when staring the problem in the face.  Thus the depth of the medical malpractice problem in the United States remains shrouded in secrecy.

This attitude displays itself all too often when a loved one is lost or permanently injured during a medical procedure and the family starts to ask questions.  Rather than honesty and candidness, the physician and hospital tend to circle the wagons.  Their default mode is risk management, not accountability.  When this “cover your rear” mentality creeps into the medical records – which are supposed to be objective statements of the patient’s course of medical treatment – then we can appreciate the extremes that a medical provider and the insurers will go to avoid responsibility for a medical error.

Every licensed physician, medical practice group and hospital carries medical liability insurance that covers the costs of hiring defense counsel and paying any judgment or settlement for a medical error.  These privately owned insurance companies are interested in one thing: turning a profit.  They do not care about the quality of medical care.  They do not care about patients or their families.  The insurers care only about money, making it by charging premiums and by denying claims involving clear medical neglect.   

The supposed medical malpractice “crisis” is a public relations myth of epic proportion created by the insurance industry to improve its bottom line.  The only “crisis” is that the insurance industry has been permitted to game the justice system for so long.  Every American citizen and potential juror should be outraged at the way victims of medical negligence are treated.  Everyone should know that the primary interests being defended in medical malpractice cases are those of a hidden insurance company.  The fact of the matter is that legal fees, insurance costs, and payouts, i.e., the cost of medical malpractice lawsuits, accounts for less than one-half of 1 percent of health-care spending.

B.        The Legal Duty of Massachusetts Physicians.

In theory, the provision of medical services in Massachusetts is like any other business transaction.  Each side is free to select the doctor and patient of their choosing, so physicians do not have a duty to provide medical treatment to any patient that requests it.  In reality, physicians rarely decline an opportunity to treat a specific patient, though the patient may have to wait for an appointment.  More often, when a physician’s practice gets too busy, he or she will simply stop accepting new patients

There are some legal limits to a physician’s ability to reject a patient.  For example, physicians participating in Medicaid or MassHealth programs are limited in who they can reject.  As are physicians affiliated or employed with any free care entity or a charitable not-for-profit organization.  Emergency physicians who are on call and competent and available to examine emergency room patients must do so under the federal Emergency Medical Treatment and Active Labor Act.

Most hospitals and medical care facilities also have their own internal policies that define a staff physician’s duty to provide medical treatment.

Once medical care has begun, however, physicians are generally under a duty to continue providing care until the provider-patient relationship is discontinued in accordance with the law.  

Once a physician has undertaken the care of a patient, the physician must exercise care to be available for patients at all times or to make arrangements to have another professional available for his or her patient’s needs.  Patient abandonment is the unilateral severance by a physician of the professional relationship between himself and the patient without reasonable notice at a time when there is still the necessity of continuing attention.  The tort of patient abandonment is recognized under Massachusetts common law and can be brought against Massachusetts health care professionals.

The Massachusetts Board of Registration in Medicine has disciplined physicians for not adequately providing for a covering physician.  

A physician may terminate a relationship with a patient only by giving notice to the patient sufficient to permit the patient to secure alternative medical care.

C.        Informed Consent.

The doctrine of informed consent is rooted in the right of every person to be free from undesired physical contact.  Informed consent has two components.  First, a person’s right to bodily integrity includes the right not to receive medical care unless consent is given.  Second, true consent cannot be given unless the patient is given all relevant information and has an opportunity to evaluate the risks involved before making a decision as to whether to receive treatment or not. 

Every physician in Massachusetts has a duty to disclose to each patient all significant medical information that the physician possesses or reasonably should possess that is material to allow the patient to make an informed and intelligent decision whether to undergo a proposed procedure.  

The duty to obtain informed consent before treating a patient is subject to an “emergency” exception when consent could not be obtained without seriously jeopardizing the patient’s life, or to prevent suicide or to protect innocent third parties from danger posed by the patient.  Emergency situations include when the patient is unresponsive, incoherent, incompetent or unable to communicate and requires immediate medical care.  Others would be where the patient is acutely suicidal or homicidal or poses an immediate threat to hospital staff, and requires sedation, restraint or other medical treatment.  The emergency exception can be invoked though only if it is impractical to obtain the consent of the patient’s surrogate decision maker, assuming there is one and they are identifiable.

D.        Battery.

Treatment without informed consent constitutes a battery, which is defined as an intentional, unpermitted contact with another person.  That the physician’s motive may have been in the best interest of the patient is irrelevant, as is the fact that the treatment may have been appropriate and even helpful to the patient.

E.         Negligence.

Medical negligence is what we commonly refer to as medical malpractice.  Physicians are subject to liability for medical negligence in much the same way as any other tortfeasor, though the proof is much more complex than in a regular negligence case.  A plaintiff-patient must establish the following:

  1.       Duty
  2.       Breach
  3.       Causation
  4.       Damages

The “duty” element will be deemed established where a patient-physician relationship exists between the plaintiff and defendant at the time of the alleged negligence.  This element is rarely challenged in claims brought by patients against their physicians.  Challenges to the “duty” element arise when the plaintiff is a third-party injured as a result of a physician’s negligent care of a patient.

The physician’s legal duty is defined as that standard of care and skill of the average qualified practitioner in that field of practice, taking into account the advances in the profession.  The nature and scope of a particular standard of care and whether it was breached are usually the major factual issues in a medical malpractice case.  In other words, the parties disagree as to what the physician was supposed to do and whether his acts or omissions deviated from that standard of care

Here is simple example of a medical malpractice dispute.  Assume that a patient presents via ambulance to an emergency room in a cervical collar following a motor vehicle collision.  The patient complains of neck pain and tingling in his fingers.  The attending ER physician orders an x-ray which shows no evidence of fracture.  The patient is later discharged home with pain medication and instructed to see an orthopedic specialist for follow up care.  That night, while rolling over in his sleep, the patient feels an electrical shock run through his neck and spine and is rendered paralyzed from the chest down for the rest of his life.  The plaintiff, through medical experts, will argue that the defendant physician failed to diagnose a neck fracture.  The plaintiff will argue that the standard of care in emergency medicine required the attending ER physician to order a spine CT instead of a poorly visualized x-ray given the plaintiff’s presenting condition.  The plaintiff will argue that the spine CT would have disclosed the presence of a fracture.  The plaintiff will argue that standard of care was breached by the physician’s failure to order a CT scan and subsequent discharge without any spine precautions.  The defendant, through medical experts, will argue that the standard of care did not require him to perform a CT scan and may even argue that the spine fracture was not caused by any failure to diagnose.  In an effort to prove who is right, both sides will rely on the education, training and experience of their respective experts along with any relevant authoritative medical textbooks or articles in the specialty.

Every medical malpractice action is reviewed by a tribunal consisting of a judge, a physician and a lawyer to determine whether “the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.”  If the panel finds in favor of the patient-plaintiff, the case may proceed without a bond.  If the panel finds against the patient-plaintiff, he or she must post a $6,000 bond to cover the payment of the defendant’s costs if the patient is unsuccessful at trial.

F.         Medical Expert Witnesses.

It is almost always necessary to present the court with expert opinion testimony as to what the applicable standard of care was and whether it was breached.  Expert testimony is usually needed on the issue of causation as well.

Ideally, the expert will be board certified in the same field or specialty as the defendant so that his or her opinion will be competent and well founded.

One of the dirty secrets in medical malpractice is that plaintiffs must go outside of Massachusetts to find medical experts.  Massachusetts physicians are strongly discouraged from testifying for plaintiffs by the powerful medical malpractice insurance companies.

G.        Indirect Liability.

In modern medical practice, a variety of services are performed indirectly by skilled physicians who never encounter the patient directly.  Prime examples would be a radiologist that interprets an MRI or a pathologist that analyzes a tissue biopsy.   Such non-“treating” physicians still owe a duty to conform to the appropriate standard of medical care in performing their medical service.

H.        Vicarious Liability.

In the landmark decision in Dias v. Brigham Medical Associates, the Massachusetts Supreme Judicial Court concluded that the traditional negligence principle of vicarious liability applies to the employer of a negligent physician.  To establish such liability, it is not necessary that the employer have the right or ability to control the specific treatment decisions of a physician-employee.  To prevail against an employer, a plaintiff need only establish that at the time of the alleged negligence, the physician was an employee and the alleged negligent treatment of the plaintiff occurred within the scope of the physician’s employment.  Once employment is established, the only remaining issue is whether the physician was working for the employer at the time of the alleged negligent treatment, i.e., whether his or her treatment of the plaintiff was within the scope of his or her employment.

I.          Spoliation of Evidence.

Physicians and hospitals have professional and legal duties to document medical care and treatment and to preserve those medical records, films, slides and other items. If a hospital or physician loses or, worse, destroys a portion of the medical record critical to the proof of the plaintiff’s case, the court can impose sanctions and remedies for the destruction of evidence in civil litigation.  Those sanctions can include instructing the jury that it can consider the loss or destruction as evidence of negligence or of consciousness of fault.  The court can also preclude a defendant from calling an expert witness on the issue or even enter default against the defendant though that is rare.  A party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.

J.         Statute of Limitations.

In Massachusetts, any medical malpractice action for injury or death must be brought within three years after the cause of action accrues.  Under the so-called discovery rule, however, the three-year limitations period does not begin to accrue until the patient knows, or reasonably should have known, that he or she was injured and that the injury was due to the conduct of a physician or other health care provider.  

The statute of limitations is also tolled during a claimant’s period of disability.    

There is a statute of repose that is not subject to any tolling or discovery rule.  It bars any medical malpractice action if brought more than seven years after the act or omission that gave rise to the cause of action (except in a “foreign object left in the body” case).  

Medical malpractice claims by minors are subject to both a statute of limitations (three years from the date the cause of action accrues, or until age nine for minors who are less than six years of age at the time the cause of action accrues) and a statute of repose (seven years from the date of the act or omission that caused the injury).

K.        Comparative Negligence.

Comparative negligence by a plaintiff in a medical malpractice case pertains to patient negligence during the treatment period.  In Massachusetts, patients can be found comparatively negligent only for their negligent conduct that occurs after the patient-physician relationship began.  Examples include not following medical instructions, refusal to take medication, self-discharge against doctor’s advice, and the like.

Any pre-treatment conditions or injuries that gave rise to the need for medical treatment cannot be a basis for comparative fault in a medical negligence claim arising out of the circumstances of the medical careIn other words, a patient’s comparative negligence can arise only after a patient-physician relationship has been established.

Under this doctrine, a patient’s claim will be barred if his or her negligence exceeds the combined negligence of all defendants. Otherwise, the patient’s recovery will be diminished in proportion to his or her degree of negligence. 

L.         Damages.

In a Massachusetts medical malpractice case, the jury is instructed that if it finds the defendant liable, it is not to award the plaintiff more than $500,000 for pain and suffering, loss of companionship, embarrassment, and other items of general damages, unless it determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case that warrant a finding that the imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.  Because this standard can often be met, the cap has not been terribly effective in diminishing pain and suffering jury awards against Massachusetts physicians.

N.        “Good Samaritan” Statutes.

In Massachusetts, there are “good Samaritan” laws that provide immunity from civil liability to licensed professionals, including physicians, who voluntarily come to the rescue of a person in an emergency.

General Laws c. 112, § 12B shields a physician from liability as a result of his or her acts or omissions when that physician, in good faith, as a volunteer and without fee, renders emergency care or treatment, other than in the ordinary course of his or her practice.

General Laws c. 112, § 12C shields a physician from liability in a civil suit for damages as a result of any act or omission on his or her part in carrying out his or her duties of administering immunization or other protective programs under public health programs.

General Laws c. 112, §§ 12C and 12F shield a physician from liability in a civil suit for damages as a result of any failure to obtain the consent of a parent, legal guardian, or other person having custody or control of a minor child, or of the spouse of a patient, to emergency examination and treatment of the minor, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient, or if at the time such care was rendered, the physician relied in good faith on the representations of such minor that he or she was legally able to consent to such treatment, or relied in good faith on the representations of such minor that he or she was over eighteen years of age.

General Laws c. 112, § 12V shields from liability in a civil suit for damages a physician or other person properly trained in cardiopulmonary resuscitation, the use of semiautomatic or automatic external defibrillators, or in basic cardiac life support, who in good faith and without compensation renders emergency cardiopulmonary resuscitation or defibrillation in accordance with his or her training, other than in the course of his or her regular professional or business activity, to any person who apparently requires cardiopulmonary resuscitation or defibrillation, except for gross negligence or willful or wanton misconduct resulting from the rendering of such emergency cardiopulmonary resuscitation or defibrillation. 

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