Massachusetts Medical Malpractice Summary

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Statutes of Limitations

In Massachusetts, any medical malpractice action for injury or death must be brought within three years after the cause of action accrued, but in no event more than seven years after the alleged act or omission occurred, except in the case of foreign object actions. Mass. Ann. Laws ch. 260, § 4 (Law. Co-op. 1992). A cause of action for medical malpractice accrues when a plaintiff learns, or reasonably should have learned, that he has been harmed as a result of the defendant’s conduct. Teller v. Schepens, 381 Mass. 621, 411 N.E.2d 464 (1980).

This statute of limitations is tolled during a claimant’s disability (other than minority). Mass. Ann. Laws ch. 260, § 7 (Law. Co-op. 1992). The statute of limitations for minors is the same as that for adults, except that a claim accruing on behalf of a child under six can always be brought before the child’s ninth birthday. Mass. Ann. Laws ch. 231, § 60D (Law. Co-op. 1992).

Contributory or Comparative Negligence

Massachusetts has adopted the doctrine of modified comparative negligence. Mass. Ann. Laws ch. 231, § 85 (Law. Co-op. 1986). Under this doctrine, a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence. Id.

Joint and Several Liability

Joint tortfeasors are jointly and severally liable in Massachusetts. See Hayon v. Coca Cola Bottling Co., 375 Mass. 644, 378 N.E.2d 442 (1978).

Contribution

Massachusetts affords joint tortfeasors a right of contribution, which can be enforced either in the principal action or in a separate action. Mass. Ann. Laws ch. 231B, § 1 and § 3 (Law. Co-op. 1986). The tortfeasors’ relative degrees of fault may not be considered in calculating their liability in contribution. Instead, liability for the judgment is divided equally among the joint tortfeasors. Mass. Ann. Laws ch. 231B, § 2 (Law. Co-op. 1986).

Vicarious Liability

A hospital can be held vicariously liable for the acts of physicians practicing there if the physicians are actual agents of the hospital. The right to control the agent’s activities is the guiding principle for determining vicarious liability. Chase v. Independent Practice Association, 31 Mass. App. Ct. 661, 583 N.E.2d 251 (1991). That case points out that other courts have considered the theories of ostensible or apparent agency, but the opinion does not consider whether Massachusetts should adopt this theory of liability because it was not raised at trial. Id.

Expert Testimony

Generally, expert testimony must be presented to support a claim for medical malpractice in Massachusetts. See Forlano v. Hughes, 393 Mass. 502, 471 N.E.2d 1315 (1984).

Damage Caps

In a medical malpractice case, the jury is instructed that if it finds the defendant liable, it is not to award the plaintiff more than $500,000 for pain and suffering, loss of companionship, embarrassment, and other items of general damages, unless it 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.

Mass. Ann. Laws ch. 231, § 60H (Law. Co-op. Supp. 1997). Since this standard can often be met, the cap should not be relied on.

Statutory Cap on Attorneys’ Fees

A claimant’s attorney may not collect a fee in a medical malpractice case which, after being deducted from the claimant’s recovery, will leave an amount for the claimant’s compensation that is less than the total amount of the claimant’s unpaid past and future medical expenses, unless the attorney’s fee is either 20 percent or less of the claimant’s recovery, reduced to 20 percent or less of the claimant’s recovery, or reduced to a level that permits the claimant to be paid his unpaid past and future medical expenses. Mass. Ann. Laws ch. 231, § 60I (Law. Co-op. 1992). Furthermore, they may not exceed the following limits: (a) 40 percent of the first $150,000 recovered, (b) 33 1/3 percent of the next $150,000 recovered, (c) 30 percent of the next $200,000 recovered, and (d) 25 percent of any amount by which the recovery exceeds $500,000. Id.

Periodic Payments

Massachusetts does not require the periodic payment of medical malpractice damages, although the trier of fact is required to set forth in the verdict the time period for which future damages are being awarded. Mass. Ann. Laws ch. 231, § 60F (Law. Co-op. Supp. 1997).

Collateral Source Rule

Massachusetts has repealed the collateral source rule by adopting a statute that applies specifically to medical malpractice cases. Mass. Ann. Laws ch. 231, § 60G (Law. Co-op. Supp. 1997). In a jury case the deduction of collateral benefits (net of any premium paid to procure the benefits) is performed by the judge after the verdict. Most collateral sources are covered, except benefits provided under federal laws providing for a right of subrogation against the recovery. Id.

Pre-Judgment Interest

In Massachusetts, medical malpractice claimants are afforded a right to pre-judgment interest which accrues at twelve percent per annum from the date upon which the action was commenced. This is added even if it causes the judgment to exceed the damage cap. Mass. Ann. Laws ch. 231, § 6B (Law. Co-op. 1986). Moreover, even though the jury is required to specify what part of its verdict is for future damages, Mass. Ann. Laws ch. 231, § 60F (Law. Co-op. Supp. 1997), pre-judgment interest must be paid on the entire verdict. Kuppens v. Davies, 38 Mass. App. Ct. 498, 649 N.E.2d 164, cert. denied, 420 Mass. 1105, 651 N.E.2d 410 (1995).

Patient Compensation Funds and Physician Insurance

Massachusetts has not established a patient compensation fund. The board of registration in medicine can promulgate rules requiring physicians to carry malpractice liability insurance in amounts it prescribes. Mass. Ann. Laws ch. 112, § 2 (Law. Co-op. 1991 & Supp. 1997).

Immunities

Massachusetts has waived its sovereign immunity as well as the immunity of its municipalities and counties. Mass. Ann. Laws ch. 258, § 2 (Law. Co-op. 1992). Public employees, however, are immune from liability, as the exclusive remedy for personal injury or wrongful death is against the state. Id. Any public entity’s liability is limited to $100,000 and no public entity may be liable for punitive damages or pre-judgment interest. Id.; see Hallett v. Town of Wrentham, 398 Mass. 500, 499 N.E.2d 1189 (1986); Harry Stoller & Co. v. City of Lowell, 412 Mass. 139, 587 N.E.2d 780 (1992).

Prior to suing a public entity, a claimant must provide written notice of the claim, and the notice must be given within two years from the time the cause of action accrued. Mass. Ann. Laws ch. 258, § 4 (Law. Co-op. 1992). Furthermore, no civil action may be brought more than three years from the date the cause of action accrued. Id.

A public employer may procure insurance for the payment of damages under the statute, and this will likely not waive the statute’s protections. Mass. Ann. Laws ch. 258, § 8 (Law. Co-op. 1992); Ayala v. Boston Housing Authority, 404 Mass. 689, 536 N.E.2d 1082 (1989) (holding housing authority’s purchase of insurance with limits in excess of cap did not waive statute’s protections).

Charitable organizations are afforded limited immunity with respect to liability arising from acts performed in pursuit of the organization’s charitable purposes. Mass. Ann. Laws ch. 231, § 85K (Law. Co-op. 1986 & Supp. 1997). Such an organization’s liability is capped at $20,000 per occurrence. Id. Immunity is not afforded with respect to activities that are primarily commercial in character. Id. The statute has been applied to a charitable hospital in a medical malpractice action. See English v. New England Medical Center, Inc., 405 Mass. 423, 541 N.E.2d 329 (1989), U.S. cert. den., 493 U.S. 1036 (1990). Employees of charitable organizations are not covered by this immunity.

Arbitration

Every medical malpractice action must be reviewed by a tribunal consisting of a judge, a physician, and a lawyer to determine whether “the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.” Mass. Ann. Laws ch. 231, § 60B (Law. Co-op. 1986 & Supp. 1992). The panel’s findings, as well as the expert testimony given before the panel, are admissible at trial. Id. If the panel finds against the claimant, the claimant must post a $6,000 bond (this amount may be increased at the court’s discretion) for the payment of the defendants’ costs if the claimant is unsuccessful at trial as well. Id.

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Revision Date: February 6, 1998