Attorney Mayo Talks Law - Medical Malpractice Tips for Consumers

Did your treatment fall below a certain standard of care?
Jonathan D. Mayo, Esq.

We grant the highest level of trust to medical professionals,  so it is particularly unsettling when mistakes are made by those professionals, or treatment is inappropriate or sub-standard. In a legal sense we think of professionals as having certain duties,  to act within a certain standard of care.    So under a malpractice action, a plaintiff must prove a breach of these duties, that the medical professional acted in manner that was inconsistent with a generally accepted standard of care. Expert opinions are most often needed to establish a malpractice claim, so plaintiffs should be sure to seek second and third opinions when  medical negligence is less than clear.

Statute of Limitations for Medical Malpractice Claims

The standard  Statute of Limitations for  medical malpractice claims is 3 years, which means that an aggrieved party must  file a lawsuit within 3 years of the malpractice. If this deadline passes and no suit has been filed, such  party would be barred from filing that malpractice suit unless they can claim an exception.

Exceptions for Standard 3-year Statute of Limitations for Medical Malpractice Claims

  • "Discovery Rule" extends deadline when breach couldn't have been reasonably discovered sooner.
  • Fraudulent Concealment of breach by medical professional can delay the deadline.
  • If the defendant left the state where breach occurred, the deadline may be delayed.

Where plaintiffs are incapacitated , or insane, the deadline may be delayed.

Statute of Repose for Medical Malpractice Claims

Where the statute of limitation sets a deadline for filing suit, and is subject to numerous exceptions, statutes of repose act to permanently bar suit after a longer period,  7 years. Under this far more restrictive test, only one exception applies, where a foreign object is placed within the body.

Starting a Medical Malpractice Claim

Assuming that one's  action is timely under statutes of limitation and repose,  a medical malpractice plaintiff must then comply with procedural requirements in filing suit.

  • Plaintiffs must give notice to the health care professional 182 days before filing a malpractice suit. Details Here
  • Then an Offer of Proof must be made to a special , 3 person tribunal. If this tribunal finds sufficient evidence of negligence, a suit may then proceed.
  • If the tribunal does not find sufficient evidence of negligence, a suit may  proceed upon plaintiff posting a $6000 bond.

Damages, Limitations and Exceptions. More Here.

  • Massachusetts limits damages at 500,000 for pain and suffering, loss of companionship, embarrassment and other general damages.

This limitation does not apply when plaintiff is substantially disfigured by the breach, suffers substantial loss of body function, or a finding that the limitations would prevent the plaintiff from getting just compensation for their injuries.

In Conclusion:

While this discussion may contain notes and opinions on the law, it does not constitute legal advice, or create an attorney-client relationship with readers. Readers should consult an attorney before making any major decisions on issues noted  here.

Thanks for taking the time to visit this page, and feel free to contact me at [email protected], or  at 508-771-1373. welcomes thoughtful comments and the varied opinions of our readers. We are in no way obligated to post or allow comments that our moderators deem inappropriate. We reserve the right to delete comments we perceive as profane, vulgar, threatening, offensive, racially-biased, homophobic, slanderous, hateful or just plain rude. Commenters may not attack or insult other commenters, readers or writers. Commenters who persist in posting inappropriate comments will be banned from commenting on