By Kathryn White
People often confuse or completely negate the different classifications of medical wrongdoing. An assumption exists within our society that all instances of such behavior constitutes medical malpractice, and yet such is only one avenue a plaintiff may pursue in hopes of recovery. Another, and often interrelated, classification is that of medical negligence. This blog hopes to highlight the main differences between the two legal theories, while concluding with a strong emphasis on seeking the advice of counsel before making a decision about which claim to pursue. If, at any point in time, it seems as though your representative is indifferent about which approach to take, be weary because such a decision can and often does have a drastic effect on the outcome of your case. Sometimes the most effective method is to file a complaint alleging both, however you must satisfy the legal requisites of each claim in order to be considered as offering substantiated claims.
In the state of Massachusetts, a person aggrieved as a result of medical malpractice has three years from the date of injury to file a claim (MA G. L. c. 260 § 4). Following the lapse of the three-year period, the statute of limitations will be deemed to have run, and the claim will no longer be available to the individual. Furthermore, Massachusetts maintains a statute that prohibits a filing of medical malpractice more than seven years after the misconduct or mistake occurred, irrespective of when the harm is discovered (MA G. L. c. 260, § 4, inserted by St. 1986, c. 351, § 30 (Statute of Repose). Additionally, Massachusetts requires that within fifteen days of a defendant's response, any and all plaintiffs produce an “offer of proof” to a tribunal of professionals who evaluate the claims and determine whether the plaintiff has presented “sufficient evidence to raise a legitimate question of liability appropriate for judicial inquiry.” (MA G. L. c. 231 § 60B). Medical malpractice damages are also capped by Massachusetts statute. The procedural rules for
medical malpractice and negligence are substantially the same, and for that reason it is important to focus primarily on the substantive legal differences between the two types of claims.
As can be seen, medical malpractice and negligence (medical), are two convoluted concepts. Should you not be sure, please reach out to Castel & Hall, LLP. at 617-716-6464 to consult with an experienced Medical negligence/ Malpractice attorney today.
In order for a plaintiff to satisfactorily prove medical malpractice, the “plaintiff must establish the applicable standard of care and demonstrate both that a defendant [health care provider] breached that standard, and that this breach caused the patient's harm.” (Palandjian v. Foster, 446 Mass. 100, 104, 842 N.E.2d 916 (2006)). This legal duty is imposed on doctors, and requires them to perform to a standard of reasonable professional in light of his or her experience and training. More specifically, the standard is “what the average qualified [health care provider] would do in a particular situation.”(Id. at 105). To satisfactorily establish a breach of this obligation, a plaintiff may provide sufficient facts for a jury to conclude that the doctor knew or should have known that a patient was in need of some type of care, and that the failure to provide such care, or to provide such care accurately, would foreseeably result in harm to the patient.
Medical negligence is different in the sense that it does not involve intent, but merely relates to a medical mishap, mistake, or carelessness. Such an event must result in actual harm to the patient. Whether such harm is emotional or physical is of no consequence. Medical negligence can exist without the behavior being sufficient to warrant a malpractice claim.
If you have been injured by a doctor, nurse, or other medical professional, irrespective of their area of expertise, consider both the legal and financial implications of filing a lawsuit. Consult with an attorney who has experience within this field, and who can offer insight into the most effective and efficient way to obtain justice for you. Medical malpractice and negligence work is time consuming as it involves the evaluation of thousands if not tens of thousands of medical documentation, along with professional assessments and reports conducted by medical
doctors within a specified field. Such cases can be lengthy, and do not always result in resolution within a year or even two. Be mindful of all of this when making a decision about whether to pursue legal action. However, do not settle for inappropriate or unprofessional behavior nor should you suffer through accidental injury without compensation.
There are no comments for this post. Be the first and Add your Comment below.
Leave a Comment