In this day of modern medicine, medical procedures have become more complex and treatment has become more specialized. Advances in diagnostic testing have led to the possibilities and expectations of earlier detection and treatment of medical issues. Despite all the advances in technology and improvements in care, not all medical treatment provides the desired results and not all procedures go according to plan. In those instances, the question often arises as to whether there is a viable claim for malpractice.
Massachusetts law “imposes on the medical practitioner a duty of care to the extent of conforming to certain prevailing standards of reasonable professional conduct for the protection of those on whom he practices from foreseeable risks.” In other words, was there a breach of the accepted standard of care within the particular practice area at issue. The question is NOT whether something went wrong during a procedure or treatment. Medicine is not an exact science. There are instances where something could go wrong during a procedure yet there was no breach of the standard of care. For example, a surgeon may inadvertently lacerate an internal organ or artery during a surgical procedure causing further damage to the patient. While such a laceration would clearly have been a mistake, a laceration may have been a risk of surgery and not necessarily the result of a “breach of the standard of care”. Unfortunately, not all medical mistakes are actionable. In order to determine whether a mistake is a breach of the standard of care, it is necessary to hire an independent medical professional to review the facts and circumstances and render an opinion.
Another hurdle to overcome in determining whether there is a viable claim of medical malpractice is whether the resulting damages were proximately caused by the breach of standard of care. For example, a surgeon makes an error during surgery on an elderly person suffering a brain aneurism which results in the patient’s death. Even if the error rises to the level of a breach of the standard of care, there will be issues as to whether the patient would have survived had the malpractice not occurred. Once again, such a case would require the retention of a medical professional to render an opinion in support of such a case against the surgeon.
Medical malpractice cases can be difficult in many different respects and generally take considerable time to litigate and resolve. The preceding is a general overview of the burden of proof that a Plaintiff must overcome in order to succeed.
Please contact Attorney James V. Marano, Jr. by phone at 617-244-3186 or e-mail at
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