A medical malpractice case involves a situation in which a medical professional, such as a doctor, failed to act according to the proper standard of care toward a patient when providing medical care or treatment, thereby injuring the patient. Generally, to prevail in a medical malpractice case in Massachusetts the plaintiff must prove all of the following:
- The existence of a doctor-patient relationship.
- The standard of medical care that the doctor owed the plaintiff under the particular circumstances.
- The doctor breached that standard of medical care.
- The plaintiff was injured.
- That the doctor's negligence caused or contributed to the plaintiff's injuries.
This article describes the following stages of a medical malpractice case: consultation with an attorney, investigation, tribunal, discovery, settlement and trial.
Consultation with Attorney
The first step in a case for medical malpractice is to meet with a lawyer. The injured person and his or her family will meet with an attorney so the attorney can understand all the facts and learn why the injured party thinks that the doctor, hospital or other health care professional or organization was negligent. Many times a person may not think he or she has a case, or he or she may be embarrassed about thinking the doctor did something wrong. However, talking to an experienced medical malpractice attorney is important because often the individual's instincts are correct and the doctor did act negligently, thereby causing serious injuries.
Preparation is critical. During the investigation phase, the attorney will review all the pertinent medical records, including hospital records, doctors' records, visiting nurses' records and anything else that can help the attorney figure out what went wrong. Being represented by an attorney with a medical background can be a significant benefit because he or she can easily understand the medical records. After gathering all the information, the attorney will generally contact one or more medical experts, who are at the top of their fields. These experts may be heads of surgery or professors at teaching hospitals such as Massachusetts General. The expert will then write a letter in support of the injured person's case. Thereafter, the attorney will file a case in court and a tribunal will be held.
In Massachusetts, a tribunal composed of a judge, physician and attorney must hear each action for medical malpractice before the case can proceed. The physician must be in the same specialty as the defendant, and the physician on the panel is selected from a pool of volunteers of the Massachusetts Medical Society. The tribunal panel listens to the parties' arguments and considers the preliminary evidence in determining whether there is a sufficient basis for the plaintiff (the injured party) to proceed to trial. Under Massachusetts law, the tribunal panel must "determine if 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." M.G.L.A. 231 §60B.
At the tribunal, the plaintiff must submit an offer of proof. This proof can include medical records, hospital records and letters from experts regarding the merits of the case. If the panel finds in favor of the plaintiff, the lawsuit can proceed. Then the parties will move into the next phase of litigation, which is discovery. If the tribunal finds for the defendant, the plaintiff can still continue with the lawsuit, but only if he or she posts a $6,000 bond.
Discovery is the stage of litigation in which the parties have the opportunity to obtain relevant information from each other. The parties can request documents and other pertinent records from each other. During discovery, the injured party will be deposed (questioned under oath) by the doctor's attorney. The doctor will also be deposed by the injured person's attorney, who will generally ask questions about the care the doctor provided to the patient, what went wrong and other relevant issues.
A fair settlement is always preferable to a trial because with a settlement, the doctor has already agreed to pay the injured party a certain amount of damages, whereas with a trial, you never know what the outcome will be. If the doctor or insurance company does not agree to a settlement that is acceptable to the injured party, the case will proceed to trial.
At trial, the parties present arguments and introduce evidence supporting their positions. In addition, the experts hired by each side testify and the jury will decide if the doctor acted negligently and if that negligence caused the plaintiff's injuries. If the jury decides in favor of the plaintiff, it is likely that the plaintiff will be awarded money damages.
*article courtesy of Law Doctors.