Articles Posted in medical malpractice

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In Massachusetts medical malpractice law, the “loss of chance” doctrine permits recovery of damages for the destruction or reduction of the prospect of achieving a more fadoctorsvorable outcome.

Plaintiffs are the ones who bear the burden in these cases of showing that the physician or other medical professional:

  • Deviated from the accepted standard of care;
  • Deviation proximately caused the injury (i.e., the loss was a foreseeable consequence of negligence and the negligence was a but-for cause of the loss of harm).

Causation of injuries in medical malpractice lawsuits is always proven through expert witness testimony. The loss of chance doctrine is usually applied to cases wherein plaintiff had a 50 percent or less chance of survival or some better outcome prior to the alleged negligence of the doctor. In cases where a plaintiff had a 50 percent or greater chance of survival/ better outcome prior to the alleged wrongful act, courts will usually apply the “more likely than not” standard. That requires plaintiff to prove it is “more likely than not” he or she would have had a better outcome were it not for defendant’s actions. The reason is under traditional concepts of causation, a plaintiff with less than 50 percent chance of a positive outcome wouldn’t have grounds for a claim. The loss of chance doctrine gives them a platform. Continue reading

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In a recent case from the Supreme Court of California, the case was tried before a jury, and jurors returned what is known as a special verdict. A normal verdict form is simply one that asks if the defendant is liable or not, and if the defendant is liable, then the jury is expected to also decide the amount of damages (financial compensation) that should be awarded to the plaintiff.  If there is no finding of negligence, then there is obviously not a need to return an award of damages.

toolHowever, there can also be special verdict forms that ask jurors to separately decide on different elements of a tort ,such as negligence, because in some cases, additional elements must be established for certain penalties and monetary awards to be triggered.  In this case, the jury returned a special verdict that found defendant was negligent in treating defendant, but that their negligent treatment was not responsible for him becoming a quadriplegic.  Continue reading

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In Parr v. Rosenthal, a case from the Massachusetts Supreme Judicial Court, the plaintiffs had filed a medical malpractice case against the defendants in the Superior Court.   In the Commonwealth of Massachusetts, The Supreme Judicial Court (SJC) is our state supreme court and the Superior Court is our highest level trial court.

reflex-hammer-1421540In this case, plaintiff was born in 1994 with a large lump on his right calf.  His parents took him to Massachusetts General Hospital (MGH) in downtown Boston to have this lump examined. After being examined, doctors referred the child to what they call the sarcoma group to have the lumped imaged and a biopsy taken. Continue reading

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In Baptist Ventures, Inc. v. Hoke, a personal injury appeal for the Supreme Court of Alabama, plaintiff was allegedly injured as a result of medical treatment she received from the defendants.  The defendants in this case run an Ear Nose and Throat (ENT) medical practice. Plaintiff was a patient of defendants.

nursesIn April 2011, plaintiff went to defendants’ medical clinic to have a procedure performed.  One day prior to the two-year anniversary of this doctor’s visit, the plaintiff filed a medical malpractice lawsuit claiming that the defendants had provided care that fell below the acceptable standard of due care, and as a result of the breach of the duty of care, she was injured. Continue reading

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When a soon-to-be mother went to the hospital at 2 a.m., her pregnancy full-term, she knew something wasn’t right. Her baby boy wasn’t moving as he had in the days and hours before. But when she got there, student resident doctors at The University of Chicago Medical Center didn’t take immediate action, even when a fetal heart monitor immediately showed distress. For 12 hours, no action was taken. For 12 hours, that child was slowly suffocating. pregnantwoman

When doctors finally did initiate an emergency Cesarean section, the baby boy wasn’t breathing. He was revived and then rushed to the neonatal intensive care unit and placed on life support. There, he stayed for weeks. But the damage to his brain over the course of those hours was irreversible. He was diagnosed with cerebral palsy. He can’t walk. He can’t bathe himself. He can’t feed himself. He requires around-the-clock care, provided almost exclusively by his single mother.

Now, a jury in Cook County, Ill. has awarded $53 million to him and his mother, which will not only ensure his health care is covered for the next 65 years of his life, but will help to compensate the family for the pain and suffering they have endured and will endure for the rest of their lives. Some will look at a damage award of this size and characterize it as excessive. But one must consider that not only will his future medical bills top $30 million over the course of his life, but mother and son will never have a normal relationship. This boy will never have a normal life of his own.  Continue reading

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In Boston medical malpractice cases, sometimes the term “never events” gets thrown around. It’s a reference to the types of medical errors that health professionals agree should never happen. And yet, they do. Some examples:doctor5

  • Retained surgical instruments (surgical tools, sponges, etc. being left inside a patient after a procedure);
  • Wrong surgery site (a surgeon performs surgery on the wrong limb, body part, person, etc.);
  • Urinary tract infection from a catheter;
  • Pressure ulcers (Stage III and IV);
  • Falls and trauma;
  • Surgical site infections;
  • Medication error fatalities;
  • Administration of incompatible blood;
  • Air embolisms.

Now, a recent study by Castlight-Leapfrog reveals not only are these events occurring, they are happening with alarming frequency. Although there is always some risk a patient incurs with every type of medical treatment. And just because someone suffers a poor health outcome doesn’t necessarily mean medical malpractice is to blame. However, these “never events” are so egregious for the fact that they are deemed entirely preventable. We know what causes them. We know how to stop them. And hospitals should have procedures and policies in place that are strictly followed by staffers to ensure these kinds of things never happen. Continue reading

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Sharkey Issaquena Community Hospital v. Anderson, a case from the Supreme Court of Mississippi, involved a patient who had a stroke and was seen at defendant’s emergency room. However, plaintiff contends that hospital did not properly diagnose the stroke and discharged him with instructions to see his primary care physician within three days.

medical-equipment-1342025-mAs a result of not being given immediate treatment for his stroke, he suffered permanent brain injury and nervous system damage, including loss of function, loss of enjoyment of life, medical bills, and pain and suffering. There were also special damages alleged as part of plaintiff’s action. Continue reading

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Harrison v. Roitmanm involved a heavily contested divorce proceeding. As part of his case, husband hired a psychiatrist as an expert to provide a psychiatric analysis of his wife. Even though the doctor had never personally examined or even met plaintiff, the doctor submitted a written report to the judge in which plaintiff was diagnosed with a personality disorder and noted she had serious mental health issues and was not likely to improve.

stethascope1Following this report, plaintiff filed a lawsuit against doctor in which she alleged that doctor committed medical malpractice by making such a negative diagnosis without ever having met plaintiff. She claimed this diagnosis caused her to suffer emotional distress. In this case, it was both negligent infliction of emotional distress and intentional infliction of emotional distress, as well as one claim of civil conspiracy. She claimed that making such a diagnosis without have personally conducted any sort of examination or even reviewing other doctors’ records was a breach of the applicable standard of care for a medical health professional in the psychiatric field. Continue reading

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In the Commonwealth of Massachusetts, there are negligence-based torts and intentional torts. A negligence tort is the most common type of claim filed in a civil personal injury lawsuit. This is when a defendant is alleged to have owed a duty of care to plaintiff, breached this duty of care, and the breach actually and proximately caused damages to the plaintiff.

varioussyringesAn intentional tort can be something like assault and battery where the tortfeasor intentionally injures the plaintiff. However, there is a different kind of intentional tort in the concept of medical malpractice known as medical battery. Essentially, whenever you go into the hospital for a medical procedure, you must give your informed consent. If you do not give your consent, then the doctor has no right to treat you.   If he or she has not consented, the contact would be considered offensive or harmful, and this would constitute a medical battery. Continue reading

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Davis v. S. Nassau Communities Hospital, a case from the New York Court of Appeals, involved a patient who went to defendant’s emergency room for treatment for a painful medical condition. Court records indicate that she drove herself to the hospital. When she arrived and was treated by doctors, she was given a narcotic opioid-based painkiller and Ativan. Ativan is a benzodiazepine like Valium or Xanax. She was given her medication at around 11 a.m.

921217_crashed_carThe common side effects for Ativan are dizziness, sedation, disorientation, and weakness. An expert testifying for plaintiff said the effect of Ativan was both hypnotic and sedative. The expert also testified about Dilaudid, which was the painkiller given to patient. This medication causes impairment of the ability to perform certain activities and makes it dangerous to drive a car.   The drug also contains an insert in the package, which says ambulatory patients (leaving the same day) should be cautioned about the dangers of driving. Continue reading