The following is a summation of the Massachusetts state medical malpractice laws. These are meant as guidelines only. For a more complete understanding of these laws, please contact us.

Arbitration

For a medical malpractice lawsuit to come to trial in the state of Massachusetts, a legal panel must first review it. Once the evidence is presented to the panel, the panel decides whether or not they think there is enough evidence to possibly prove liability. If the panel decides there is enough evidence, their findings are admissible as evidence during the trial. If, however, the panel decides there is not enough evidence to prove liability, the claimant may bring the suit to court by posting a $6000 bond, which the judge may raise if he/she sees fit. The bond is essentially payment for the legal costs of the defendant if the claimant loses the case.

Attorney Fee Cap

A claimant's attorney may not collect a fee that, after being deducted from the claimant's compensation (money awarded to them for their suffering, etc.), would leave the claimant's unable to pay their past and future medical expenses. The exceptions are if the attorney's fee is either 20 percent or less of the claimant's recovery, the fee is reduced to 20 percent or less of the claimant's recovery, or the fee is reduced to a level that allows the claimant to pay his unpaid past and future medical expenses.

Also, Attorney's fees cannot exceed:

• 40% of the first $150,000
• 33% of the next $150,000
• 30% of the next $200,000
• 25% of any amount over $500,000

Contributory Negligence

The state of Massachusetts has a modified version of comparative negligence. If the claimant is shown to be responsible for some degree of negligence, the compensation they are eligible for is lowered by the percentage of their negligence. Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence.

Contribution

Joint tortfeasors (multiple parties who may be partly liable for the medical error) have a right of contribution. The degree of each joint tortfeasor's liability shall not be used to determine their contribution. Instead, liability is divided equally among the joint tortfeasors.

Damage Caps

The state of Massachusetts has placed a cap on damages for medical malpractice cases at $500,000 for pain and suffering, loss of companionship, embarrassment, etc. This dollar amount can be raised only if there is a substantial loss or impairment of a bodily function or disfigurement, or other circumstances in which $500,000 could not be considered just compensation for the damages sustained by the claimant.

Expert Testimony

As is the case in most other states, medical malpractice cases must include expert testimony to establish the standard of care of hospitals and healthcare personnel and whether or not there has been a breach in the specific case.

Immunity

The commonwealth of Massachusetts, along with its municipalities, and counties are not immune from medical malpractice cases. However, public employees are immune from liability as the exclusive remedy for personal injury or wrongful death is against the state. The liability of all public entities is limited to $100,000. Public entities are not liable for punitive damages or pre-judgment interest.

A public employer may procure insurance for the payment of damages under the statute, and this will likely not waive the statute's protections.

Charitable organizations have limited immunity as long as the suit deals with actions they made in pursuit of their charitable purposes. Liability is limited to $20,000 per incident. Employees of such organizations have no immunity.

Joint and Several Liability

Joint tortfeasors are jointly and severally liable.

Periodic Payments

Periodic payments of damages is not required in the state of Massachusetts, although the trier of fact must state the time period for payment of future damages.

Physician Insurance

The board of registration in medicine has the authority to make rules requiring physicians to carry malpractice liability insurance.

Pre-Judgment Interest

Medical malpractice claimants have a right to pre-judgment interest (accruing at 12% per year from the date the action is begun). This amount is added on to the damages even if it bumps the total over the damage cap. And while the jury must indicate what part of its verdict is for future damages, the pre-judgment interest has to be paid on the entire verdict.

Statutes of Limitations

Medical malpractice cases involving either injuries or death have to be filed within 3 years of the cause of action. Cause of action means when the claimant could have reasonably learned that the incident was grounds for a medical malpractice suit. No lawsuit may be brought to trial after 7 years from the date when the alleged incident occurred (there is an exception for cases involving foreign objects).

The statute of limitations does not change for cases involving minors, except if the minor is less than 6 years old. In these cases, the case can be brought until the child reaches 9 years old.

Vicarious Liability

A hospital can be held responsible for the actions and mistakes of physicians that work in the hospital if they are "agents" of that hospital. Physicians are considered agents if the hospital essentially controls the physician's activities there. The question of ostensible agency has never fully been decided by the state of Massachusetts.