Medical Malpractice

The Boston, MA medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. provide you with this guide to Massachusetts medical malpractice law:

The Epidemic of Medical Malpractice

Medical malpractice is an epidemic in Massachusetts and elsewhere. In 1999, the Institute of Medicine published a landmark report entitled, “To Err Is Human: Building A Safer Health System,” which estimated that 98,000 patients die each year due to medical malpractice.1 To give some perspective on that number, 32,708 people in the United States died in car accidents in 2010. So deaths due to medical malpractice are three times as prevalent as deaths due to auto accident. If death due to medical malpractice were listed on the Centers For Disease Control’s list of the leading causes of death, it would be the nation’s sixth leading cause of death — right above diabetes.

In the decade since the Institute of Medicine’s landmark report, the number of deaths attributable to medical malpractice may have actually increased. A November 2010 report released by the Office of the Inspector General at the U.S. Department of Health and Human Services (HHS) estimated that 180,000 patients die every year due to medical malpractice.2 In a recent article published in The New England Journal of Medicine, commemorating the ten-year anniversary of the publication of “To Err Is Human,” researchers found that, a decade after “To Err” highlighted the issue of patient safety, nearly three percent of hospital patients are the victims of life-threatening medical errors.3 Non-life threatening incidents of medical malpractice are even more common. According to a 2011 article published in the journal Health Affairs, fully one-third of American hospital patients are the victims of injurious, but non-life threatening medical errors.4

Medical Malpractice Is Avoidable

The real tragedy behind the staggering number of deaths and injuries due to medical malpractice is that many of these incidents are avoidable. But, because American medicine has not made a serious commitment to patient safety, tens of thousands of lives are needlessly lost each year.

A landmark study by the World Health Organization (WHO) has shown that the use of medical checklists during surgery reduced medical malpractice by forty-seven percent.5
But only twenty percent of American hospitals have adopted such checklists.

Studying “closed cases” to review how mistakes were made in hopes of avoiding repeating the same mistakes in the future, is another way to reduce medical malpractice. The practice is common in many other industries from aviation to trucking
and in industrial accidents. However, American medicine has only made limited use of “closed claim” projects to reduce the incidence of medical malpractice, despite their proven effectiveness.6

The Legal Definition of Medical Malpractice

Up until this point, we have been using the term “medical malpractice” interchangeably with “avoidable medical error.” But “avoidable medical error” is not necessarily the equivalent of medical malpractice. Legally speaking, all cases of medical malpractice involve some instance of avoidable medical error but not all cases of avoidable medical error constitute medical malpractice.

So what is medical malpractice? Medical malpractice is a “failure to exercise the degree of care and skill of the average qualified physician practicing that specialty, taking into account the advances in the profession at the time of the alleged negligent act and the medical resources available to the physician.”7 The concept of medical malpractice centers around what the “average qualified physician” would do in a given situation; the concept of avoidable medical error does not — the concept of avoidable medical error merely focuses on what the average qualified physician should do in a
given situation.

In order to be actionable, medical malpractice must result in an injury to the patient.

How Medical Malpractice Cases Differ From Ordinary Negligence Cases

Medical malpractice lawsuits are a kind of negligence lawsuit. But medical malpractice lawsuits differ from the usual kind of negligence cases — such as slip and falls, and car accidents — in at least two respects.

The first is that it is irrelevant for purposes of medical malpractice liability whether there was some state-of-the-art, but widely unused, solution that could have prevented the injury to the patient. One of the most famous negligence cases in history is the T.J. Hooper case from 1932.8 The T.J. Hooper was a ship that sunk because the tug that was towing it was not equipped with a radio. At the time, most tugboats were not equipped with radios, although some were and the cost of equipping all tugs with radios would have been minimal. Judge Learned Hand, one of the greatest jurists in American history, held that it was negligent for the tug to have lacked a radio because the cost of purchasing a radio was so much less than the likelihood of a serious accident happening due to the lack of a radio. This same principle has application in other areas of tort law, such as product liability lawsuits, where if there is some state-of-the-art safety measure that would have avoided an accident at little or no cost to the manufacturer, the manufacturer is liable for any injuries that could have been prevented through use of the safety measure.

Unfortunately, the same principle does not apply in medical malpractice lawsuits. In medical malpractice lawsuits, a doctor’s conduct is judged not by what the doctor should have done, given all possible courses of treatment, but rather what the “average qualified physician” would have done in the same situation. If the average qualified physician would have recommended a sub-optimal course of treatment or would have missed the same symptoms as the defendant doctor did, you will be unable to prove medical malpractice.

Since, in medical malpractice cases, whether your doctor was negligent depends on what most other doctors would have done in the same situation, medical malpractice lawsuits differ from most other negligence cases in another respect: the need for expert testimony to prove liability. Generally speaking, it takes another doctor’s testimony (or several doctors’ testimony) to prove that the doctor who injured you departed from the care you would receive from an “average qualified physician,
practicing in the specialty.”

Medical experts expect to be compensated for their time, especially when they are very busy people and their testimony may make them an unwelcome figure in certain quarters. Thus many medical malpractice lawyers screen the cases of potential medical malpractice clients very thoroughly, as the lawyer will have to spend tens of thousands of dollars on expert witness fees. It seems that law professor Tom Baker was right in his book The Medical Malpractice Myth in his assessment that, “we have an epidemic of medical malpractice, not medical malpractice lawsuits.”9

Varieties of Medical Malpractice

Medical malpractice takes place in a variety of settings, from the operating room to an outpatient setting and a patient should not assume that just because she was treated at a state-of-the-art facility that no error was made. Several studies have shown that most victims of medical malpractice never learn of their doctor’s error.

In addition to taking place in a variety of settings, medical malpractice occurs in a variety of forms. Among the most common forms of medical malpractice are failure to diagnose cases, cases of misdiagnosis and medication error. Often these errors, if detected in a timely fashion, can be remedied. But some surgical errors, especially those occurring during childbirth, result in birth defects and other permanent and irreversible injuries.

You can learn more about some common forms of medical malpractice by reading the following links:

Damages In A Massachusetts Medical Malpractice Case

In non-fatal cases of medical malpractice, medical malpractice victims in
Massachusetts are entitled to recover, among other items:

  • lifetime medical expenses related to the medical malpractice;
  • lost wages, lost earning capacity, and other financial losses incurred as a result of the medical malpractice;
  • pain and mental suffering, loss of companionship, embarrassment, loss of enjoyment of life and other emotional damages caused by the medical malpractice,
    both to date and in the future;
  • money damages for any impairment or loss of bodily function, whether temporary or permanent in duration, that is related to the acts of medical malpractice and;
  • money damages for any scarring or disfigurement caused the acts of medical malpractice

If the medical malpractice is fatal, the victim’s estate can, under the Massachusetts wrongful death statute, recover punitive damages and other damages in addition to the above-described damages. For more information, see our “Wrongful Death” page.

What You Should Do If You Are A Massachusetts Victim Of Medical Malpractice

If you suspect that you’ve been a victim of medical malpractice, you should contact a lawyer. Your doctor is unlikely to tell you that a medical error was committed in the course of your treatment. According to a study by the Kaiser Family
Foundation, seventy percent of patients who are the victims of medical errors are not informed by their doctors.10The code of silence amongst doctors is so strong that only two-thirds of physicians who have known impaired or incompetent colleagues have ever reported them.11 A medical malpractice lawyer can help you collect your medical records and have medical experts review your records to help determine whether your case is meritorious.

For some steps that you can take to try and avoid becoming a victim of a preventable medical error, you can visit our “How to Protect Yourself from Medical Malpractice” page.

To learn more about Massachusetts medical malpractice laws, please visit our “Massachusetts Medical Malpractice Law” pages.
1Kohn LT, Corrigan J, Donaldson M (1999). “To Err Is Human: Building A Safer Health System.” Institute of Medicine.
2Daniel R. Levinson, “Adverse Events in Hospitals: National Incidence Among Medicare Beneficiaries,” Department of Health and Human Services Office of the Inspector General, November 2010.
3Landrigan CP, Parry GJ, Bones CB, Hackarth AD, Goldmann DA, Sharek PJ (November 2010). “Temporal Trends In Rates of Patient Harm Resulting From Medical Care”. N Engl J Med 363: 2124-2134.
4Classen DC, Besar R, Griffin F, Federico F, Frankel T, Kimmel N, Whittington J, Frankel A, Seger A, James BC (April 2011). “‘Global Trigger’ Tool Shows That Adverse Events In Hospitals May Be Ten Times Greater Than Previously Measured”. Health Aff 30(4): 581-589. For a full treatment of the efficacy of checklists in reducing medical malpractice, see Dr. Atul Gawande’s “The Checklist Manifesto: How To Get Things Right.” (Metropolitan Books New York 2010). The entire nineteen step safe surgery checklist adopted by the World Health Organization can be accessed at
5Weiser TG, Haynes AB, Dziekan G, Berry WR, Lipsitz SR, Gawande AA (May 2010) “Effect of a 19-Item Surgical Safety Checklist During Urgent Operations In a Global Patient Population”. Ann Surg 251(5): 976-980.
6“Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury,” Joint Commission on Accreditation of Health Care Organizations, 2005.
7Brune v. Belinkoff, 354 Mass. 102 (1968).
8The T.J. Hooper, 60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662 (1932).
9The Medical Malpractice Myth, Baker, T (University of Chicago Press 2005).
10National Survey on Consumers’ Experiences With Patient Safety and Quality Information, Kaiser Family Foundation, November 17, 2004.
11DesRoches C, Rao S, Fromson J, Birnbaum R, Iezzoni L, Vogeli C, and Campbell E, “Physicians’ Perceptions, Preparedness for Reporting, and Experiences Related to Impaired and Incompetent Colleagues,” JAMA 2010 Jul 14 304(2):187-193.