Attorney McGuire - MedMal Lecture Notes

now settled

seems to work, but expensive

most lawyers do not dabble in medmal field

most business comes from referrals

referrals are okay in Massachusetts

must be in writing with that firm

retain client as yours

hold on to some participation in the action

client notes

read medical records


"read between the lines"

expect 50-70 telephone call to get the case

"O my God case" -- first test is whether a jury will so respond

plan on about $20K cost to attorney

$50K for more complicated cases

nursing testimony $10K

check for enough damages to justify attorney’s time and involvement; case must be paid in the end

have patient get records; attorney is to "lay low"

takes too long for attorney to get records

look to medical records department

Massachusetts has 20 year records retention requirement

expense: about $.25-50 per page

never have client tell that it is for a lawyer

x-rays are held in separate dept.

pap smears/biopsies in pathology dept.

cardiac catheterizations with films/imaging dept.

collect items ASAP, especially radiology; film not subject to same laws as medical records

try to get original copies; copies not as good so have patient insist

there may be two sets of records, one with addenda or deletions

last resort: the medical expert (makes a living on this)

heads of major professional orgs (who want bad actors out of their org)

go for the best -- they’re expensive and busy

"average expert" can be found by work of mouth; develop a list of who reviews cases

first, fax short letter describing the case and facts (4-5 pp); usually gets a reaction

follow up with a request for that person to review the record

talk about money up front; usually charge regular medical fee; propose amount with "call if over $xxx.xx

spoon feed to get a positive or negative opinion

cost usually $600-1000

do not let expert write report; create state report with state laws in mind

this is to get case before the medical tribunal

which standard of care to be used

Note: in Massachusetts there is no need to hire an expert in the same field, but must be qualified to speak or object

[e.g. no, in Bristol County, yes in Suffolk]

negligence occurred in Bristol county but suit filed in Suffolk

state court is preferable to federal

informed consent

consortium claims; h/wife, dependent children

proper party

executor/administrator; this is a specialty area

get certificate of appointment from probate court

voluntary administrators have no legal capacity to file law suits

all parties to sign


locate anyone possible to be administrator or co-executor/trix


in Massachusetts, qualified immunity for charitable corps

cap of $20K for a hospital

do not let a qualified go to the jury, which does not know of the cap

check with Sec of State, corporations, review bylaws e.g. HCHP=cap, Fallon=no cap

federal tort claims act, e.g. V.A.

must give notice of infraction to sue. e.g. 6 months

must follow fed requirements precisely

then file

if federal, must sue US

Massachusetts tort claims act, must sue Commonwealth; provide notice to state with claim letter within 2 years; sue within 3 years; refer to GL c. 258.

Massachusetts damages cap at $100k

must prove direction and control of attending physician

in Massachusetts, not allowed to use numbers

federal, can put value on request

usually not experienced in answering and thus must educate and prepare them on how and when to answer

Massachusetts allows use of authoritative texts and treatises

the standard cross-examination is to yield a judgment call rather than standard of care "as long as within the standard practice of the medical profession."

in Massachusetts, can insist the patient be examined by witness/physician

make sure your witness has seen everything

teach witness never to answer "yes" or "no"

help witness by providing record for use during cross examination; this is not a memory test

general principles, when proposed, must be applicable to the case at hand

hypothetical questions to expert: "assuming... (1) do you have an opinion; (2) what is your opinion?"


request for production of documents

most important tool in medmal case

if you cannot take defendant down in deposition, probably cannot later

usually all day; covers background of defendant, licenses, status, revocations, privileges, letters of reprimand, any info?

board certification for specialists; failed, recertified?

foreign school; why?


drug/alcohol problems?

updatedness regarding new procedures

no longer: coaching during deposition; advise to not answer’ leaving room

check witnesses’ textbook; when s/he studied?

sued before; look for disposition from other cases, trial transcripts.

allow 2-3 weeks to prepare witness for trial

in Massachusetts, very restrictive

voir dire = to see, to say