Boston Medical Malpractice Lawyer
Boston is home to some of the best hospitals and medical professionals in the world. When people go to a doctor, they expect to receive the proper diagnosis and treatment for their ailment. While its true that advances in modern medicine have contributed to human longevity by adding an average of 30 years to the human life span since 1900, unfortunately, there can also be mistakes. According to the Journal of Patient Safety, an estimated 400,000 people die premature deaths due to medical malpractice each year. Using this estimate, medical malpractice is the third leading cause of death in the United States behind heart disease and cancer. Even if a death does not occur, a serious medical mistake or misdiagnosis can have long lasting effects, and patients injured as a result of these mistakes deserve to be compensated for their losses.
Types of Medical Malpractice
Medical malpractice can occur in a variety of ways and is not limited to in-hospital care but can occur in any environment where you receive medical treatment. Some examples of medical malpractice are:
- Nursing home neglect. Nursing homes and assisted living facilities exist to provide constant care to elderly individuals. When a nursing home staff neglects their duties, do not exercise a reasonable degree of care in their work, or a nursing home fails to adequately vet their employees, elderly residents are the ones who suffer. Nursing home neglect could include bedsore injuries, unsanitary living conditions, abandonment, or any other incident involving a nursing home or nursing home staff failing to provide reasonable care to residents.
- Birth injuries. Obstetricians must ensure they take every precaution and carefully monitor babies’ vital signs during labor and delivery. Most birth injuries result from negligence, and could include oxygen deprivation, excessive force, or injuries from surgical instruments. A “birth injury” could describe an injury to a newborn infant, the infant’s mother, or both.
- Misdiagnosis. A misdiagnosis is an incorrect diagnosis. Doctors use a process of elimination to determine a patient’s condition. While some symptoms of medical conditions can mirror the symptoms of others, doctors use a variety of techniques to reach positive diagnoses. If a doctor fails to reach an accurate diagnosis, he or she may be guilty of medical malpractice if he or she failed to check all possibilities before diagnosing a patient.
- Failure to diagnose. If a doctor is completely unable to diagnose a patient’s condition, he or she needs to find a specialist or another doctor who can. When doctors fail to deliver any diagnosis, this “failure to diagnose” can sometimes constitute medical malpractice if it leads to patient harm.
- Unreasonable delay in treating a known medical condition. When doctors know a patient’s condition they must use accepted methods for treatment. If a patient’s medical condition is definite, the doctor must treat the patient promptly while meeting the acceptable standard of care for the situation. There is no good reason to delay treatment of a known medical condition, and doing so constitutes medical malpractice.
- Infection or injury resulting from an unclean or unsafe hospital environment. Most doctors do not sterilize their own procedure rooms, instruments, and other medical devices used in patient care. These responsibilities typically fall to nurses and other support staff members. If hospital staff members fail to maintain a clean and safe environment suitable for patients, the hospital could be liable for any infections or injuries that befall patients as a result.
- Surgical errors. Any surgery has potential to go wrong for a variety of reasons. However, surgeons must exercise the appropriate level of care during every procedure. Surgeons who injure patients during surgeries, leave surgical tools inside patients, or otherwise compromise the safety of a surgical procedure are typically liable for malpractice if the error harms the patient in any way.
- Anesthesiology errors. Anesthesia plays an important role in medicine. Anesthesia helps keep patients stable and reduces or eliminates pain. Some anesthesia renders patients completely unconscious, so doctors may perform their work without disturbing the patient and causing unnecessary pain. If anesthesiologists fail to carefully monitor a patient’s vital signs, or a doctor fails to take a patient’s drug allergy concerns into account, anesthesia errors can cause serious complications and may even be fatal in some cases.
- Pharmacy errors. Some drugs are dangerous for patients with some medical conditions. Other medications may conflict with the medications a patient already takes. Doctors must ensure their prescriptions are appropriate for their patients, and pharmacies must ensure they dispense the right medications in the right dosages. Many prescription medications have similar-sounding and similarly-spelled names, and pharmacists must ensure they carefully check every patient’s prescriptions to ensure order accuracy.
- Assisted living issues. Assisted living communities allow elderly individuals to retain a sense of independence while having convenient access to medical care. When assisted living communities fail to administer appropriate care, endanger their residents, neglect residents, or otherwise inflict injuries on the people in their care, the responsible parties will likely face liability.
- Paramedic and EMT negligence. Paramedics and EMTs have a duty of care to their patients to stabilize them and provide immediate triage until they arrive at the emergency room for more comprehensive care. The law recognizes the stressful nature of this type of work, as well as the sense of urgency it creates, and there are many protections in place for EMTs who act in good faith to help their patients. However, EMTs and paramedics who fail to meet the appropriate standard of care for a situation can incur liability for medical malpractice.
- Delivery errors. While a “birth injury” can apply to many possible issues with prenatal care, labor, and delivery, a “delivery error” specifically applies to injuries inflicted on babies during the delivery process by negligent doctors.
How many patients are victims of medical negligence each year in the U.S.?
These estimates are from the Civil Justice Resource Group and are based on hospital records.
Less than 3% of those people harmed file a medical negligence claim!
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Medical Malpractice Statistics
It is very hard to determine exact numbers when it comes to medical malpractice incidents in the United States. The reason is simple: medical malpractice often happens without patients even being aware that they are victims. At the same time, a very, very small percentage of patients who do think that they have been harmed by negligent doctors report their experiences or seek compensation and justice.
However, while we don’t have as much research on medical malpractice as we wish, we do have some. Here is what we know:
- Studies show that an estimated 400,000 patients die as a result of medical mistakes each year in the United States. Even the lowest, most conservative estimates are above 200,000 patient deaths.
- According to a 2009 federal report, medical malpractice results in $35 billion in spending each year by the healthcare industry–about 2 percent of overall spending. This money is for insurance, awards, and administrative costs.
- In Massachusetts, doctors make between 300 and 400 medical malpractice payouts each year. Annually, between 400 and 700 adverse action reports are filed against doctors across the state.
- According to the Civil Justice Resource Group, just 5 percent of doctors are responsible for 50 percent of medical malpractice claims. In other words, there is a very small number of medical professionals who cause the most amount of harm.
- Also according to the CJRG, only about three percent of medical malpractice victims file claims of negligence.
- A 2012 study released by the U.S. Department of Health and Human Services found that only 14 percent of medical errors and treatment mistakes regarding Medicare patients were reported by hospitals.
- The two most common forms of medical malpractice are diagnostic errors (46 percent) and surgical errors (34 percent).
- The median age for a medical error is 38 years old. Twenty percent of medical mistakes involve babies and infants, while 12 percent involve seniors over 65 years of age.
- According to the same study, the most common type of doctors sued for medical malpractice are OBGYNs, followed by general surgeons and general practitioners.
- About 93 percent of all medical malpractice claims settle out of court.
What can we learn from these statistics? One big takeaway is that medical malpractice will continue to be a leading cause of death in the United States until we start educating ourselves, speaking up, and holding negligent parties responsible for their actions.
Hospital and Doctor Performance in Boston
A 2016 report on the Massachusetts healthcare system indicated that the state’s hospitals consistently underperform compared to national averages in many areas. According to the data, Readmission rates in Massachusetts hospitals were 54% higher than national averages. For safety, Massachusetts hospitals performed 27% worse than the national average. Patient experience scores linger around 29% below national averages, and Massachusetts hospitals performed 62% worse than the national average for timeliness of care.
These statistics may be startling, and they should serve as a warning to anyone entering the Massachusetts healthcare system for treatment to remain vigilant for signs of malpractice. Doctors, hospitals, and all healthcare professionals have a duty to act with reasonable care and meet the acceptable standards for treatment, patient experience, timeliness, and all other aspects of care. When they fail to do so through negligence, and patients suffer as a result, those patients can recover their damages through medical malpractice claims.
Adverse Action Vs. Medical Malpractice Payment in Massachusetts (2004-2015)
Source: National Practitioner Data Bank
Under Massachusetts state laws, a plaintiff cannot recover more than $500,000 for non-economic damages in medical malpractice cases. Non-economic damages include pain and suffering, loss of companionship, embarrassment, and other general damages not related to economic damages, such as medical costs. However, if it is shown that there was substantial impairment or permanent loss of a bodily function and that the damage cap deprives the plaintiff of just compensation, then it may be exceeded. Furthermore, the statute of limitations for medical malpractice actions in Massachusetts is three years from the date that the injury occurred.
Medical Malpractice Tribunal
Most states have laws which require the plaintiff’s attorney to submit proof of the defendants negligence at the beginning of a medical malpractice case. Massachusetts General Law chapter 231, section 60B states that after a lawsuit is filed, the plaintiff’s lawyer must make an Offer of Proof to a three person tribunal, consisting of a superior court judge, physician from the same field of practice as the defendant, and an attorney authorized to practice in the commonwealth. Within 15 days of the defendant’s answer to the complaint being filed, this tribunal decides whether or not the case has any merit going forward. During this time period, the tribunal may subpoena records or summon witnesses to acquire more evidence. If the tribunal rules against the plaintiff, they can still decide to proceed with the lawsuit, but must file a $6,000 bond, payable to the defendant if they do not prevail in the final judgement.
If you think you have a medical malpractice claim, it is a prudent to get a copy of your medical records as soon as possible. Medical records are important pieces of evidence in malpractice claims. Even if you have all of your records in order, due to the complexity of modern medicine, malpractice claims require complex litigation because of the various issues that may be involved. Some key points about medical records in Massachusetts include:
- Healthcare providers and doctors must give you access to your medical records usually no longer than 30 days after filing a request.
- There may be a charge for copying your records, but Under the HIPAA Privacy Rule, you cannot be charged for simply reading your records.
- You have the right to amend your medical records to make them more accurate as well as file a complaint if the right to see your own records was violated.
- Doctors in Massachusetts must keep medical records for at least 7 years from the date of their last encounter with the patient or until they reach age 9. Hospitals must keep records for at least 30 years after the final treatment of a patient.
Understanding the Standard of Care
In order to understand what constitutes medical malpractice, it is vital to understand the legal term, “standard of care.”
Not all medical mistakes are medical malpractice. Doctors and hospitals can’t be expected to perform perfectly and to never make an error–that would simply be impossible, and sometimes mistakes are not preventable even when you have the best care. But medical professionals can be held to certain levels of quality, which is referred to legally as the standard of care.
Put simply, the standard of care is the level of care an ordinary, reasonable, and competent person with the same training and experience would provide under similar circumstances and conditions. In other words, would an average doctor acting in the same situation have made the same mistake, or would they have known to act differently?
For example, if a surgeon made a mistake during a very complex and dangerous operation, it may not be medical malpractice because any other surgeon would also have difficulty with the procedure. But if a surgeon made a mistake during an operation that other doctors would have avoided, such as perforating an organ or operating on the wrong knee, they may have been negligent and may face a medical malpractice lawsuit.
It’s also important to understand that specialists are often held to a higher standard of care than general practitioners and other medical professionals. For example, while a family may miss the signs and symptoms of a rare cancer, an oncologist with specific training may face a lawsuit for a missed diagnosis or misdiagnosis.
How can you better understand if your medical treatment or the medical treatment of your loved one was below the accepted standard of care? In many cases, a medical expert witness can analyze the evidence in the case, determine the standard of care, and determine whether your medical provider met the standard of care.
Contact Our Attorneys
Given the nature of malpractice litigation, it is important to choose a knowledgeable and trustworthy firm to handle your medical malpractice claim. At Sweeney Merrigan Law, our Boston medical malpractice lawyers will investigate your claim immediately and fight to get you the compensation you deserve. Contact us for a free consultation today and see how we can restore your peace of mind.