Under Massachusetts law, a physician or other health care provider is charged with possessing and exercising that reasonable degree of skill, care and learning ordinarily exercised by an average qualified physician or other health care provider in similar circumstances. Medical negligence is the failure of a responsible health care provider, either by action or omission, to exercise that degree of skill, care and learning under the particular circumstances. It does not matter how good the provider's intentions were. A Plaintiff may recover on his medical malpractice claim if he proves the following three things, by a preponderance of the evidence:
(1) that the doctor, nurse, hospital or other health care provider undertook the care and treatment of the patient, and therefore had a duty to use reasonable care to avoid causing injury to him;
(2) that the health care provider was negligent in fulfilling that duty; and
(3) that the negligence of the health care provider was the "legal cause" of the injury suffered by the patient, including the worsening of his condition and/or death. Negligence is the "legal cause" of an injury if it directly and substantially contributed to producing the injury.
Ordinarily, unless a health care provider's conduct is readily recognizable by a lay person as causing the patient's injury, expert opinion testimony is required before it can be inferred that the health care provider's want of skill or care, if any, was the legal cause of the patient's injury. A medical expert is permitted to testify as to his or her opinions because of his or her special training in and knowledge of the medical field.
THE THEORY OF LACK OF INFORMED CONSENT
A physician owes his patient the duty to disclose in a reasonable manner all significant medical information that he possessed or reasonably should have possessed that would have been material to an intelligent decision by the patient regarding a course of treatment. The information the physician reasonably should possess is that information which is possessed by the average qualified physician practicing in the specialty of the physician at that time. The extent to which the physician must share that information with the patient depends upon what information he should have reasonably recognized was material to the patient's decision.
Materiality is the significance a reasonable person, in what the physician knows or should know in his patient's position, would attach to the disclosed information in deciding whether to submit or not to submit to surgery or treatment. The appropriate information to be disclosed may include the nature of the patient's condition, the benefits to be reasonably expected, the irreversibility of the procedure, the likely result of no treatment, and the available alternatives, including their risks and benefits.
A physician's failure to disclose in a reasonable manner to a competent adult patient sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure constitutes medical negligence.
Elements of a Medical Malpractice Trial
The Jury's Role
In the trial of a medical malpractice case, the jury hears the evidence and decides what the facts of the case are. In deciding the facts of the case, the jury has to decide which testimony to believe and which testimony not to believe. The jury may believe everything a witness says, part of it, or none of it. In considering the testimony of any witness, the jury may take into account:
(1) the opportunity and ability of the witness to see or hear or know the things testified to;
(2) the witness' memory;
(3) the witness' manner while testifying;
(4) the witness' interest in the outcome of the case and any bias or prejudice
(5) whether other evidence contradicted the witness' testimony;
(6) the reasonableness of the witness' testimony in light of all the evidence; and
(7) any other factors that bear on believability.
The Plaintiff's Burden of Proof
The injured person who brings the law suit is called the "plaintiff." A plaintiff may recover on his/her claim if he/she proves the following things, by a "preponderance of the evidence":
(1) That the person being sued for causing the accident, called the defendant, was negligent; and
(2) That defendant's negligence was the "legal cause" of the injuries and monetary losses that the plaintiff suffered.
A "preponderance of the evidence" simply means evidence that persuades the jury that the plaintiff's claim is more likely true than not. To put it differently, if one were to put plaintiff's and defendant's evidence on opposite sides of the scales, plaintiff's evidence would make the scales tip slightly on the plaintiff's side.
Medical Negligence
Under Massachusetts law, a physician or other health care provider is charged with possessing and exercising that reasonable degree of skill, care and learning ordinarily exercised by an average qualified physician or other health care provider in similar circumstances. Medical negligence is the failure of a responsible health care provider, either by action or omission, to exercise that degree of skill, care and learning under the particular circumstances.
Causation
The "LEGAL CAUSE" of an injury is a cause which is a "substantial factor" in bringing about the injury. In determining whether the defendant's conduct was the "legal cause" of the plaintiff's damages, the jury determine whether the defendants' conduct had such a substantial effect in producing the injury as would lead reasonable persons to regard it as a cause. Causation is incapable of mathematical proof, since no person can say with absolute certainty what would have occurred if the defendant had acted otherwise. Juries are permitted to draw upon ordinary human experience as to the probabilities of the case.
Expert Medical Witnesses
In medical malpractice case, expert medical opinions are usually mandatory to establish that the defendant physician departed from good medical practice and that such departure was the legal cause of injury to the patient. Expert medical witnesses' testimony on facts and opinions is offered to the jury for guidance. Usually, the physician will also present a medical expert who renders the contrary opinion--that either the defendant physician's care was reasonable and appropriate or that anything that the physician did or did not do was not the legal cause of any harm to the patient, or both. It is the jury's function to determine the qualifications of the expert witnesses and the effect of the witnesses' testimony on their judgment of the case. If a jury person believes the testimony of a certain expert witness, then he or she may be guided in the ultimate decisions on the issues the expert covered.
Experts are permitted to testify because of their special training in and knowledge of the field in which they are testifying. Generally, the rule is that if a person has knowledge and experience beyond that of the ordinary person in the community, he/she can testify not only as to facts but also as to his/her opinions. An opinion is only as good as the facts and reasons on which it is based. If a fact supporting an opinion is not proven at trial, or has been disproved, the jury must consider that in determining the value of the opinion. Likewise, the jury must consider the strengths and weaknesses of the reasons on which it is based.
Hypothetical Questions
Experts are traditionally posed with certain types of questions known as hypothetical questions. A hypothetical question is a question in which an expert witness is asked to assume that certain facts are true and to give an opinion based on that assumption. The propounding of such question does not indicate that the facts so required to be assumed apply to the present case. It is for the jury to determine whether the facts on which any such opinion are based have been established.
DAMAGES IN A MEDICAL MALPRACTICE CASE
If the defendant in a medical malpractice case is found negligent, the plaintiff is entitled to recover an award of damages that will place him in the position he was in immediately before the defendant's negligent act. In other words, the plaintiff is to be compensated for all past, present, and future harm caused by the defendant's medical malpractice.
The elements that make up the damages the plaintiff may recover include, but are
not limited to, the following:
1. the reasonable value of necessary medical care incurred and which will be incurred in the future;
2. fair compensation for the diminution in earning power, that is, the loss of the capacity to work and earn a living; and
3. fair compensation for physical and mental pain and suffering and reasonably probable future physical and mental pain and suffering. Mental suffering can consist of sadness, depression, grief, anxiety, worry, embarrassment, terror, ordeal, shock or apprehension. By mental suffering, it is meant any mental anguish or emotional distress, as distinguished from physical pain and suffering. This factor may also include mere loss of enjoyment of life.
There is no formula by which the jury will determine the amount of damages, other than to apply common sense and reason in weighing the evidence of the nature and extent of the injuries received.
The law requires a wrongdoer "to take his victim as he finds him." In other words, the fact that the person injured was unusually susceptible to injury does not relieve the defendant from liability for any injury that he has caused. If the defendant is negligent, the plaintiff's right to recover damages is not limited by the fact that his injury resulted from aggravation of a preexisting condition. Where an injury arising from a cause which entails liability on the defendant combines with a pre-existing condition to bring about a greater harm to the plaintiff then would have resulted from the injury alone, the defendant may be found liable for all of the consequences.
A defendant is also liable for the premature hastening or the acceleration of a condition.
In Massachusetts, there is a limitation of damages for pain and suffering that a plaintiff may receive in a medical malpractice case:
The jury may not award more than $500,000 for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the jury 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 which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.
Stuart R. Malis, Esq. | Phone 781-652-8193
4 Militia Drive, Lexington, Mass. 02421 | E-Mail: smalis@rcn.com
