Medical Malpractice Law
Summary of Massachusetts Law

The following is an introductory overview of Massachusetts law governing medical malpractice cases. This is only an overview, and is no substitute for experience and expert advice from a qualified Massachusetts medical malpractice lawyer.

Elements of the Claim

Medical malpractice cases are a type of negligence case, and the elements of proof are the same:

• The defendant was negligent

• The defendant's negligence was a cause of injury to the plaintiff

• The plaintiff sustained damages as a result of the negligence

Although the elements are straightforward, the proof in a malpractice case requires expert testimony from medical providers in the same field to prove the negligence of the medical provider, and other experts on the question of damages.

Statutes of Limitations

Ordinarily, a medical malpractice case must be brought within three years of the date of the injury. There are some exceptions which make this time longer, and other exceptions which make the time shorter.

If the malpractice is not known or reasonably knowable, then the action does not accrue until the plaintiff becomes aware of the injury or the malpractice. This is known as the "discovery rule." At that point the three year limitation begins to run.

There is a modified statute of limitations for children under the age of six. The statute may be up to six years, but for a minor under the age of six, the suit still must be brought by his or her ninth birthday.

However, Massachusetts also has a strict statute of repose on medical malpractice cases. Except in cases of retained foreign objects, such as sponges or surgical instruments, no suit may be brought more than seven years after the negligent act occurred. G.L. c. 231, § 60D.

Comparative Negligence

Under Massachusetts law, a medical provider may claim that the plaintiff was negligent, and that his or her negligence was a contributory cause of the injury. So long as the negligence of the plaintiff is not greater than that of the defendants or the combined negligence of all of the defendants, the plaintiff may still recover. However, the award will be reduced by the proportion of the plaintiff's negligence. G.L. c. 231, § 85.

Joint and Several Liability

Massachusetts law allows a plaintiff to recover the full judgment against any responsible defendant or all responsible defendants. This is known as the principle of joint and several liability. This an important right of Massachusetts citizens, and is frequently under attack by the medical lobby which seeks to change the law each year.

Vicarious Liability

Under Massachusetts medical malpractice law, an employer is liable for the negligence of its employees, agents and servants if the person was negligent in the course of his or her employment. This is known as vicarious liability. Thus a medical corporation is liable for the acts and omissions of its staff; a hospital is also liable for the medical malpractice of its staff. However, doctors are usually not employees of the hospitals where they work.

Proving agency can sometimes be very difficult. If there is not salary paycheck, then other elements of proof, such as the right to control, or actual control of another's actions

Expert Witnesses

Expert witnesses are usually required to establish the standard of care, to establish that the defendant breached the standard of care. Other expert testimony may be required to establish that the medical malpractice was the cause of the plaintiff's injuries. Other experts may be required to establish the damages, such as lost future earnings, future medical expenses, and future pain and suffering.

Caps on Damages in Massachusetts Medical Malpractice Cases

Under Massachusetts medical malpractice law, the plaintiff may not recover 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 "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."
G.L c. 231, § 60H.

Collateral Source Rule

Massachusetts law allows the defendant to seek a reduction of a judgment if parts of the damages have been paid or will be paid by a collateral source. For example, if health insurance or disability insurance provides for the payment of medical bills and lost earnings, the defendant is usually entitled to reduce the judgment the those amounts (after subtracting the cost of the premiums). the collateral source rule in medical malpractice cases does not apply to certain federal programs or workers compensation.

Sovereign Immunity

Massachusetts law allows residents to bring claims against the state and all of its political subdivisions for medical malpractice causing injury or wrongful death. It is very important to note that the claim must be presented to the public entity within two years of the negligent act. The discovery rule does apply, so if the negligence is not discovered, the two year period does not begin until the discovery. (However, see the statute of limitations rules above.) After presentment, the political entity has six months to seek a settlement before suit can be filed.

Unfortunately, damages in medical malpractice cases, as with other negligence cases, against the state or any municipality are limited to $100,000.00 and there is no prejudgment interest.

Charitable Caps on Damages

Under a decades-old law, damages against a charitable organization are limited to $20,000.00. This charitable cap applies to medical malpractice cases and other negligence cases. Although the employer may not be liable for more than $20,000.00, there is no bar against suing a responsible employee. So while a hospital may not be liable for more than $20,000.00 under the charitable cap (and most Massachusetts hospitals are charities), its nurses may be sued if they are negligent.  There is legislation pending to raise or eliminate the caps. Massachusetts has the lowest caps on charitable organizations in the United States.

Choose an Experienced Massachusetts
Medical Malpractice Lawyer

Medical malpractice cases are complex and difficult, and often take a long time to resolve due to the complexity of the litigation involved. It is important to choose a malpractice lawyer carefully. Our page on Personal Injury Caused by Medical Malpractice may answer more of your questions. Our Choosing a Lawyer page answers many questions you may have about choosing a Massachusetts medical malpractice attorney for your case.

Our Case Reports page describes many of the medical malpractice personal injury cases we have successfully handled on behalf of our clients.

If you feel you have a medical malpractice case, it is vital that you act immediately to protect your rights, as Massachusetts has strict statutes of limitations for medical malpractice cases. Please call us at 617-723-7676, or toll free at 1-800-379-1244, or use our contact form.