Articles Posted in Medical Malpractice

In the recent case of Arsenault v. Bhattacharya, a Massachusetts appellate court considered whether the dismissal without prejudice of a medical malpractice action was appropriate. The plaintiff filed a complaint against the doctor on October 21, 2013, alleging that the doctor incompetently treated her for carpal tunnel syndrome and cervical spondylosis with radiculopathy. The doctor first began treating the woman for these conditions in January 2008.

In response to the plaintiff’s complaint, the defendant filed a motion to dismiss, claiming that the case was time-barred under the statute of limitations. According to Mass. Gen. Laws. ch. 231, section 60L, a plaintiff must provide notice to a physician of an intent to file a lawsuit against him or her. The notice must be provided six months before the lawsuit is filed. This statute also lays out a number of other requirements that apply to medical malpractice cases in Massachusetts. For example, the notice must include a description of the facts giving rise to the claim and the standard of care that the plaintiff deems applicable to the circumstances. It also allows for the six-month notice period to be shortened to 90 days when certain conditions are met.

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When we go to the doctor or have a surgical procedure performed, we expect the physicians and nurses who perform the appointment or procedure to use the appropriate care. This includes not only the performance of the procedure but also preparing for it and preventing unnecessary infections. This same standard also applies to medical device manufacturers when it comes to designing and producing devices that mitigate against unnecessary harms like contamination and infection.

Recently, medical device manufacturer Olympus initiated a recall after reports stated that 100 patients became ill with antibiotic-resistant superbugs. The patients all were treated with one of Olympus’ medical devices, called a duodenoscope, which is a camera used in surgeries. According to several reports, Olympus makes roughly 85 percent of the duodenoscopes that are available on the market today.

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In the recent case of Milambo v. Satlin, a Massachusetts appellate court affirmed a ruling in favor of the defense in a medical malpractice case involving the stillbirth of a child. The plaintiff in the lawsuit was the father of a child who was stillborn. The baby was delivered via Caesarian section (C-section) during 2007. The father brought the lawsuit in his capacity as the personal representative of the deceased infant’s estate.

According to the complaint, roughly 45 minutes passed between the moment that the physician overseeing the birth informed the mother that a C-section procedure was needed and the time that the mother provided her consent to proceed with the procedure. After the child was delivered via C-section, it was discovered that the infant had a zero score on the Apgar scale and lacked any detectable pulse.

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In any case involving the alleged wrongful death of the victim, the surviving heirs bringing the action must show that the defendant acted negligently at the time of the accident. This involves proving four separate elements:  duty, breach, causation, and damages. In a medical malpractice case, the plaintiff typically must offer testimony from a medical expert regarding the issues of duty and breach. The trial court is vested with the authority to decide whether the expert whom the plaintiff has selected has sufficient experience and knowledge to provide an expert opinion about the issue.

In Ellis v. Clarke, the plaintiff brought an action on behalf of the estate of a woman who passed away due to lung cancer. The plaintiff named the treating physician for the decedent as the defendant in the action. After trial, the jury returned a verdict in the plaintiff’s favor, finding that the doctor had acted negligently and that the lack of adequate medical care he tendered was a substantial cause in the decedent’s passing.

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In Parr v. Rosenthal, the plaintiff filed suit against his physician after a radio frequency ablation (RFA) procedure on the plaintiff’s minor son’s leg. According to the plaintiff’s complaint, the procedure resulted in severe burning of the child’s leg, ultimately requiring amputation of the limb.

After a trial on the matter, the jury concluded that the plaintiff failed to file his action on behalf of his son within Massachusetts’ three-year statute of limitations for medical malpractice claims. As a result, the jury did not discuss whether or not the defendant doctor had treated the son negligently. The plaintiff appealed. According to the plaintiff, the trial court failed to instruct the jury regarding the “continuing treatment doctrine.”

According to the plaintiff, the trial court failed to instruct the jury regarding the “continuing treatment doctrine.” In reviewing this contention, the Massachusetts Supreme Judicial Court first noted that this doctrine had not before been recognized in Massachusetts. The appellate court took the occasion to expressly recognize the doctrine and applied it to the plaintiff’s claim. This doctrine states that in a medical malpractice case, the statute of limitations does not start to run while the plaintiff and his or her doctor continue their relationship, and the doctor continues to render medical treatment to the plaintiff for the same condition or a related condition.

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A Massachusetts jury recently returned a verdict in a case involving an alleged birth injury that has garnered national attention. In the complaint, the parents of the child alleged that their daughter suffered injuries during birth as the result of negligent care. The daughter was age 11 at the time the plaintiffs brought the complaint. The plaintiffs named six health care providers that participated in the birth procedure, but they did not name the hospital.

The complaint states that sometime on September 5-6, 2004, the mother was 28 weeks pregnant when she began suffering reduced fetal movement. She reported to the medical facility, where she was admitted for overnight observation. At 5:30 pm the next day, the baby’s heart rate reduced rapidly, and the doctors decided to perform a cesarean section to remove the fetus. After the baby was extracted from the uterus, she required immediate resuscitation. Documents admitted at trial and during discovery indicated that the baby suffered a severe injury to her brain due to a lack of oxygen and blood flow. The daughter is unable to walk or speak, is legally blind, and requires a feeding tube.

According to the complaint, the plaintiffs alleged that these injuries could have been avoided had the physicians performed the cesarean procedure earlier.

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In Bradley v. Sugarbaker, a woman suffered scars on her lungs after she was involved in a car accident in 2002. Roughly two years later, the woman underwent a medical examination that revealed she may have lung cancer. The physician who performed the test was a thoracic surgeon. Shortly thereafter, the woman received a surgical biopsy to remove part of her lung tissue and to test it for cancer. Prior to the operation, the woman signed an informed consent document stating that she would receive a bronchoscopy, a mediastinoscopy, and a minithoracotomy.

The procedure commenced, and the thoracic surgeon ended up also performing a pulmonary wedge resection, which resulted in the sample containing a larger portion of lung that also included healthy lung tissue. According to the plaintiff’s medical records, the operation became “more extensive” as a result of the scarring on the woman’s lungs from previous trauma and surgery, and there were a number of air leaks as a result of the wedge resection.

A number of months later, the woman was diagnosed with several conditions, including a fungus in her chest, a bronchopleural fistula, a collapsed lung, a cough, and worsening pain in her arm. Eventually, the plaintiff was required to quit working due to the severity of her health conditions, and she was also required to receive a number of subsequent surgeries, as well as expensive anti-pain and anti-fungal medications.

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Although most people are familiar with the concept of a hospital being held liable for medical malpractice, few are also aware that hospitals can also be held liable for a broader scope of injuries. In the recent case of Doe v. Boston Medical Center Corporation, the Appeals Court of Massachusetts was faced with the issue of whether or not it was reasonably foreseeable that a Spanish interpreter called to the hospital to help doctors communicate with an admitted patient would sexually assault patients.

The facts of the case are as follows. In 2008, the plaintiff, an immigrant who spoke Spanish, was admitted to the defendant’s hospital for the delivery of her first child. Since the plaintiff did not speak English, the hospital sought the help of an interpreter so that the doctors could communicate with the patient and vice versa. The plaintiff’s complaint alleged that, during the time she was admitted, a Spanish interpreter whom the hospital hired entered her room, lifted her gown, and touched her vagina and abdomen. The complaint also contended that another patient reported being sexually assaulted at some point that day as well. The interpreter was fired after the incident.

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Statutes of limitations are one of the most important elements of any civil action, including personal injury cases. Like most other states, Massachusetts has enacted a statute of limitations for medical malpractice cases, providing an injured party with three years from the date the right to sue accrued to file his or her case. When it comes to medical negligence, however, it isn’t always clear when the plaintiff’s injuries arose. Some diagnoses can be difficult to make based on the plaintiff’s existing illnesses, or when the symptoms do not manifest for several months–or even years.

In the recent case of Parr v. Rosenthal, the Massachusetts Court of Appeals had the opportunity to review a trial court’s dismissal of a medical malpractice action based on the lower court’s determination that the plaintiffs failed to file their lawsuit within the statute of limitations. The plaintiffs consisted of two parents of a child whose leg suffered severe burns, ultimately requiring amputation. During 2005, and in an attempt to repair the leg prior to the amputation, the treating physicians used a procedure called a radiofrequency ablation (RFA). Complications arose during this procedure, requiring amputation of the leg.

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