Medical Malpractice

Topics presented


Class Notes

Topics presented



The increase in medical malpractice cases can be attributed to a variety of factors, among which are:

In Massachusetts, 87-90% of cases that went to the jury result in verdicts favoring providers, with the national average over 50%. When a provider makes a promise of a specific result, the plaintiff may sue for breach of contract. Where no such specific promise is made, the plaintiff may sue in negligence for failure to use reasonable care.

The duty of care arises from the physician-patient relationship (implied contract); the provider agrees to use his or her skills, ability and best judgment. Although there is no duty to rescue, once started, there is a duty to use reasonable care.

In Massachusetts, there is an absolute right to a jury trial, except on GL c. 93A issues. Massachusetts does not allow jury nullification.

Standard of care

The standard of care is judicially set, with the judge announcing to the jury what the standard is. Expert witnesses define what the average qualified physician would have done by giving opinions as to whether there was compliance with that duty of care. Noncompliance, the failure to perform according to the standard, is malpractice.

To whom is the duty of care owed?

This is a step by step analysis focusing on the situation, facts and events at the time of the malpractice and asking:

  1. Is there Privity?
              it is a contract based jurisdiction?
              is there strict or narrow privity?
  2. Is there a Special relationship?
              a duty of care derived from an existing doctor-patient
              relationship which is required to be exercised by a provider
              over a non-patient
  3. Was there Foreseeability?
              where to cut off liability?
              where to limit liability?
              known, unknown, non-existing people?

Under common law, a contractual relationship developed with a promise, usually implied.

Where there is no promise and a provider's treatment brings about adverse results causing a patient to sue that provider for negligence, the duty arises from an implied contractual relationship.

All duties are dependent on privity of contract, i.e., privity between the provider and the patient; there is no duty to a third person because the duty arises only from a relationship.

Foreseeability extends privity to what is reasonably foreseeable by looking to the time of the tort and whether the potential plaintiff was known.

  • Tarasoff v. Regents (murder by psychiatric patient) finds no privity, but a duty is owed to a foreseeable victim.
  • Shepard v. Redford (contagious meningitis, not treated) finds no privity between the doctor and the son, but the court found a "special relationship" between the woman and the physician hospital which could establish that the hospital owed a duty of reasonable care to the woman's son.
  • In Chatman v. Millis a divorced man sought the services of a psychologist to determine whether her son's father might be sexually abusing him. After examination, the psychologist concluded that there was the likelihood of such an abuse and provided a report to that effect which was eventually used in court. The boy's father sued  for negligent diagnosis by the psychologist whose defense was based on the lack of a physician-patient relationship and thus no duty to the father or subsequent cause of action.
  • In Bradshaw v. Daniel a patient was brought to the ER with symptoms of Rocky Mountain Spotted Fever and died a day later. The physician who communicated with the patient's wife never warned her that she also might be at risk because of the circumstances under which her husband contracted the disease. Even though not communicable, the both may have been exposed at the same time. She came down with same symptoms and died; the subsequent suit in her behalf alleged that the physician failed to warn her that she might also be at risk. On appeal, the Tennessee Supreme Court concluded that the physician-patient relationship with the husband was adequate to impose an affirmative duty of care to warn persons in his immediate family about the risks concerning this illness.

When does the duty of care end?

Many cases require reasonable notice to end the doctor-patient relationship.

Who is the proper defendant?

Theories of liability

Sparger unearths a variety of liability doctrines:

Why not sue a tortfeasor?

Multiple Tortfeasors

More than one provider can be involved in the negligence. In Gilson v. Mitchell, it is assumed that a catheter is broken off in the patient; it is never found. With multiple providers, viz., tortfeasors, the question is who is responsible and what can be done?

Other bases for recovery

In Forlano v. Hughes, a myelogram was performed in connection with severe headaches, but dye entered the patient's brain. Plaintiff sued Dr Frieburg and Lahey Clinic for breach of contract, because another surgeon performed the procedure. No malpractice was found in the procedure, and the measure of damages was the same as if the contract was not performed (or performed by Dr Frieburg).

In Bratt v. IBM, a company doctor malpracticed and the question was whether the plaintiff could sue the company for invasion of privacy. The Massachusetts privacy statute, GL 214 1B, codifies a person's right against unreasonable, substantial or serious interference with his privacy. But the physician here enjoys no testimonial privilege and can be made to testify to everything.

"Loss of a chance"doctrine: In Boody v. US, plaintiff dies after a a tumor on her lung, which defendant failed to diagnose, metastasized and spread to her brain. There was expert testimony that had the tumor been diagnosed in its early stage, there was a 51% change that she would have lived for 5 years; after metastasis there was a very slight change she would survive. The court here adopted what has become the majority rule that loss-of-a-chance means loss of an "appreciable" chance which depends on the circumstances of the case. 51% chance was considered "appreciable." A figure must be placed on the life, and then a percentage applied. Herskovits v. Group Health held that evidence of a reduction in the chance of survival from 39% to 25% was sufficient to go to the jury on the issue of proximate cause. In Cooper v. Sisters of Charity the court held that the burden on the plaintiff was to establish that the negligence of the defendant probably caused the death, thus requiring more than 50% probability of survival but for the negligence. After a court finds that the loss-of-a-chance of survival is a compensable injury, the next inquiry concerns how to value that chance.

Why pay damages for death?

In Glicklich v. Spievack, had defendant #1 not misdiagnosed, plaintiff would have had a 50% chance of survival for 5 years. Defendant #2 also misdiagnosed at the time when there would have been possible survival of 2 years. Same with defendant #3. It is not true that without malpractice she would have lived, i.e. she lost a chance. But for the negligence she would have been given time and therefore hope, such as it was. Extended life has intrinsic value; advances in medicine and science have reduced the level of pure speculation so that statistics have more conclusive value.

Multiple defendants contributing to the injury

With the paucity of evidence in the ordinary tort case, there is not enough evidence for rational apportionment. Thus joint and several liability and the joint tortfeasor statute are used. The tactic is to sue D1 and let D1 sue D2, D3, etc for contribution.

Experts can now provide each tortfeasor's percentage of liability as part of the whole picture. Reconstructionists give opinion as to liability and also to who is at fault.

How do medmal and tort claims differ?

In tort cases, the usual elements of duty, breach, causation and damages are to be applied; proximate causation must be shown. It must be shown that more probably than not the negligence caused the injury.

In medmal cases, an expert is asked what a provider did (improper technique, etc) and whether that malpractice to a reasonable degree of medical certainty caused the damage.

In Willey v. Ketterer, the plaintiff had cerebral palsy; there could have been a predisposition for this in the family. The defendant had no expert but only theory. There was no scientific evidence that seizures are related to the plaintiff's condition of palsy. Thus there can be no allusion to material not in evidence and no personal opinion.

Alfonso v. Lund explores whether severed fingers could be successfully attached. Conjecture is juxtaposed to a reasonable degree of medical certainty, i.e. court jargon v. physicians' jargon (as witnesses).

In Harrington v. Cohen a halo is negligently applied by D1 to minor patient's head in preparation for a spinal corrective procedure; D2 then attached the halo but as a result of D1's action, an infection developed in patient's brain tissue causing injury. D2 was not negligent. At issue was whether without the malpractice of D1 there would not be the need for D2 and the consequential damages. The court held that the chance of infection was still the same as if D1 was successful.

Harlow v. Chin considers whether there was sufficient evidence of proximate cause. Evidence supported a conclusion that the physician was negligent in not warning fall victim to return in two or three days if pain did not subside. The return of the patient within that period, instead of 18-day period that actually elapsed, would have prevented patient from becoming a quadriplegic. This Massachusetts case also invokes the $20,000 limit of liability for not-for-profit corporations.

Ferrara v. Galluchio presents a situation where D1 administered an excessive x-ray dosage. D2 was subsequently not negligent but did alert the patient of the possibility of developing cancer. On the issue of whether D1 was responsible for patient's cancerophobia, the court found for the patient. Foreseeability entered the analysis. The dissent found the decision had gone too far.

Other theories of liability

1. Wrongful conception/pregnancy (normal child results).

C.S. v. Neilson illustrates a claim for "wrongful pregnancy" resulting in the birth of a normal, healthy child as result of unsuccessful sterilization procedure performed by the physician.

Liability results from (a) negligently performed sterilization; (b) negligent advice as to the risk of conception; (c) breach of guarantee (in contract action) because a procedure or technique is performed properly, but is accompanied by a guarantee.

Damages may include: (a) OB/GYN costs; (b) pain and suffering attending birth; (c) cost of sterilization procedure; (d) emotional toll of being pregnant.

States are split on the cost of rearing the child. Some look at the reasons for sterilization, e.g., economic, genetic, emotional, therapeutic; all play a part in determining damages.

Under the benefits rule in Massachusetts, the court will award costs of rearing a child after offsetting this by the benefits derived from that child. The problem which arises is that costs can be calculated mathematically, but determining the benefits from the child are difficult to calculate.

Burke v. Rivo held that parents of a normal, healthy child born after a physician unsuccessfully performed a sterilization procedure on the mother could recover the cost of raising child to adulthood.

The minority Massachusetts view (O'Connor, J.) is no recognition of damages other than child bearing damages, because it would involve an intolerable inquiry. The majority limited damages rule allows payment only for child bearing, not child rearing.

2. Wrongful birth (child has defects)

Liability results because the parties intended pregnancy, but because there was negligence in some health service before pregnancy and related to it, e.g. pre-natal testing, genetic or preconception counseling. Massachusetts recognizes a cause of action for wrongful birth, Viccaro v. Milunsky, where parents of minor child afflicted with a genetic defect allege that negligent preconception genetic counseling by geneticist induced the parents to conceive and give birth to a child. Here the reasoning is, because the provider is negligent with proper testing and fails to inform the parties that the child will be born with defects, the parties may have aborted. Siemieniec v. Lutheran held that parents had cause of action for extraordinary medical expenses and other expenses involved in caring for a hemophiliac child during his minority.

The damages for the severely handicapped child: (1) special medical expenses; and (2) special education. The court will not give child rearing expenses, but will give special expenses.

3. Wrongful life (suit by child)

This suit is brought by the child who is the product of the wrongful birth, alleging that had the provider not been negligent in testing and counseling, "I" (the child) would not have been born. Siemieniec v. Lutheran held that a child had no cause of action on his own behalf for extraordinary medical expenses s/he expected to incur during her/his majority.

Damages are derived from the fact that the child is impaired for life. Because impaired life must be weighed against no life, most courts find this to be an intolerable inquiry. Some courts have allowed expenses until the age of majority.


Trying a case with an expert witness

A medmal suit is heavily dependent on expert(s). With the exception of products liability suits, witnesses are here required more than in any other suit because

  1. the duty is owed to the plaintiff by the defendant (i.e., the skill and care of the average qualified physician, Brune v. Belinkoff);
  2. an average qualified physician's conduct/breach is usually ascertained by an expert;
  3. causation is usually determined from the expert's testimony; and
  4. damages (extent, future and amount of disability) are witness reliant.

Trying a case without an expert witness

1. by evidentiary admission.

Admission can only be used against a party defendant; only a party opponent may make an admission. A statement against self interest is admissible and may prove a case without an expert.

In Lipman v. Lustig the plaintiff placed defendant's statement into evidence. Only a party can make an admission. In John Hopkins v. Genda part of a needle remained in the patient because of a "wrong angle" used during the procedure. That wrong angle is not an admission of medical negligence; not every adverse result is due to negligence in the practice of medicine.

2. call the defendant as a witness.

Not applicable in criminal cases. Jurisdictions are separated on what can be asked of the defendant. Percipient testimony is acceptable, e.g., "what happened?" Jurisdictions also differ on what is the standard of care in this situation. Massachusetts allows a witness to be called and asked his/her opinion and asked what the standard of care is, whether it has been violated and is this the proximate cause. In Massachusetts the plaintiff may ask anything of the defendant as long as it is relevant; it may also lead the witness upon examination, e.g. "isn't it true...?" In McDermott v. Manhattan it was held that the plaintiff could call the defendant-physician to the stand, question his factual knowledge and as an expert establish the generally accepted medical practice in a community.

A person cannot be summoned to give an expert opinion involuntarily nor can a person with no connection to the event be forced to testify. The courts usually acknowledge the expert's right to testify in cases they so choose; they cannot be summoned just because they are experts. As a rare exception in a narrow specialty where very few persons are knowledgeable, expert witnesses can be summoned (and must be paid) to testify for the defendant. Oftentimes witnesses are hired even if not needed, just to bottle them up.

3. learned treatise rule

Most literature is not generally admissible into evidence to prove the truth of what it contains because it constitutes hearsay. By exception, learned treatises are admissible into evidence through direct examination of an expert witness in tort/malpractice cases against physicians and hospitals. This is often as a direct response to any conspiracy of silence. Notice to the other party is required in Massachusetts, Reddington v. Clayman. Published statements of fact or opinion, GL c. 233 79C, are admissible in actions of contract or tort in malpractice. GL c. 233 79B allows in anything printed for people in the field and widely accepted.  The methodology to prove the authenticity and authority of the treatise is to get the defendant to say that the book is authoritative.

4. Under FRCP 36, a request for admissions is used to prove facts that are difficult to prove. If there is no response then the facts are deemed admitted. If the defendant denies the facts and the plaintiff subsequently proves those denials, plaintiff is entitled to recover costs for proving those facts.

5. common knowledge of the average juror

Case law often revolves around whether through reasonable inference the ordinary juror knows of the duty and skill required of the average qualified physician. An inference is never necessary; it is permissible. Causation must still be proved through an expert. In Lipman v. Lustig, a dentist's reamer fell into the patient's throat; the dentist's duty, obviously, is not to drop this, and the ordinary juror knows here. Contrast this with Ward v. Levy, where a patient was bleeding after leaving the dentist. The ordinary juror does not have the knowledge to know whether the dentist breached his duty. In Toy v. Mackintosh the plaintiff swallowed a tooth after extraction causing her coughing and shoulder pain. The jury here was not bound to believe the expert evidence coming from the defendant's witnesses that the tooth had nothing to do with the plaintiff's condition afterwards. Normally, an expert is not needed in cases of obvious causation which are within the knowledge of the average juror, but ascertaining the extent of damage may require one where the situation is vague, e.g., when patient has a terminal condition (cancer) and then is a victim of malpractice The minority holds there is no liability because the patient will die anyway.

Res ipsa loquitur generally is not broadly accepted in medmal cases. It is an instrumentality under the control of the defendant which produces injury which would not have occurred if the actor(s) in control used proper care. It shifts the burden of proof.   The British case, Byrne v. Boadle, Court of Exchequer 1863, in which a barrel of flour is thrown from a second floor and injures a passerby deals with the control of instrumentality where there are multiple possible actors. Medmal cases, however, seek to attach fault with specificity. Winning a case is first to establish that a defendant was in control of the instrumentality and then shift the burden to have the defendant prove that it did not have control. By contrast, Horner v. Northern Pacific found that the res ipsa loquitur doctrine was applicable.

Evidentiary issue

A protective order is a way of preventing a lay witness from testifying. Plaintiff is not entitled to the opinion of the witness, only percipient testimony. Thus an expert witness cannot be summoned to testify if not paid. The attorney may not cover the cost of an expert witness for a client who cannot afford to do so.

GL c. 233 79G, in any proceeding in any court, an itemized bill or any report related to the medical treatment is admissible into evidence, including the opinion of the physicians as to the diagnosis and proximate causation.

Quality assurance reports are admissible (business records exception).

Peer reviews are not discoverable on policy grounds, but not on evidentiary grounds.

Physician's reports prepared for litigation may be protected under the work product rule/exception.


A general verdict is to find for either the plaintiff or defendant. With a special verdict, the jury is asked separate questions regarding the different elements of negligence for each defendant.


Damages found in medmal cases are fundamentally the same as in any contract or tort action, e.g., loss of earnings, disfigurement, pain and suffering, out-of-pocket medical expenses, limiting disability, consequential (consortium, companionship, moral support).

In Massachusetts:  there is also an entitlement to all future damages; the plaintiff cannot specify the amount of damages (ad damnum) sought, however the cover sheet of court papers for the case must show how much the case is worth. When the case is over, it is unclear whether anything can be said to the jury. A per diem argument is prohibited in Massachusetts, i.e., explain and relive the every day life of the plaintiff demonstrating what the injury caused, the help needed and "what's that worth per day?" or "do the math!" or "what's it worth not to have this every day?"

The usual counts in a fundamental medmal case are (1) negligence; (2) breach (failure to produced a promised result); (3) negligent failure to obtain informed consent of the plaintiff (actually part of negligence); failure to obtain informed consent is actionable; (4) products liability, e.g., strict liability because an instrument broke in a patient (sue surgeon, manufacturer, distributor).

Defendants in medmal cases, and peculiar to such cases, use the fundamental defenses of "I didn't do it" and "It wasn't I," both characteristic in any action. Others include:

Total immunity means plaintiff cannot sue and collect because of absolute immunity. Limited means plaintiff can, but there is an upper limit of $20,000 to what can be collected. Under the so-called New York Rule, Bing v. Thunig, a charitable entity was immune as to its charitable activities, but was not immune as to its administrative activities.

There is a movement throughout the country to increase the upper limit. (1) Formerly under common law in cases of irreparable harm, charitable institutions would be put out of business; (2) Also, donations might be affected and lowered if earmarked for legal expenses and awards; (3) charitable gifts are often in the form of trusts (inter vivos or testamentary); the settlor expects the purpose of the trust to be observed, not payment to claimants and lawyers. Today, insurance protects small institutions, but these in turn are being absorbed by larger ones.  

Under the Massachusetts Torts Claim Act one cannot sue the employee, but can sue an institution up to a limit of $100,000. Here the employer has become completely immunized, a complete reversal of common law by the legislature. Under the equivalent federal act, one can sue the federal government, not the employee.  The old rule applies if it is a military rule hospital, e.g., VA Hospitals; the policy reasons immunizing military personnel include the consideration that such doctors must also respond to military orders in providing medical care. Lilly v. Fieldstone held that a civilian consultant called upon to perform emergency surgery at a US Army hospital was an independent contractor, rather than an "employee of the government" as required to allow substitution.

With comparative negligence, the burdens are the same. With pure negligence, just do the numbers, e.g. defendant's negligence at 70% v. plaintiff's negligence at 30%. In Massachusetts, with limited comparative negligence, there can be some recovery as long as the plaintiff is under 51%. If over 50%, plaintiff gets nothing.

The dual capacity concept here arises which says that a person should be able to sue a provider who is a co-worker, (e.g., hospital employee is injured on the job and is taken to the ER where he is injured by the physician) because medical service was not given in the capacity of co-worker, but instead as a medical service provider. Some hospitals are open to the public and thus the doctrine should apply to all those who are part of "the public." Seems to exist in only 2 or 3 states.

The Statute of Repose, GL c. 231 60d, suits brought on any claim by minors against a provider must be commenced within 3 years, except if the minor is under age 6 in which case the minor has until his/her 9th birthday to commence the action, but in no event shall it be commenced more than 7 years after the act/tort. This statute is meant to be a limitation on the discovery rule. Hardy v. VerMuelen claims the statute of repose is unconstitutional, but the majority opinion is that the statute is constitutional.

The Discovery Rule states that the statute of limitation does not begin to run until the happening of an event which puts the plaintiff on notice, i.e., when the plaintiff knows or should have known.  In Franklin v. Albert an x-ray showed an abnormality which the physician missed when he discharged the patient as being normal. Plaintiff brought suit 4 years later when Hodgkin's and a severe malignancy were disclosed. The court reasoned that the plaintiff should not be faulted for blameless ignorance especially of the problem is inherently unknowable. A cause of action for medical malpractice does not "accrue" under the statute of limitations until the patient learns, or reasonably should have learned, that s/he has been harmed as result of physician's conduct.

Both Palermo v. Brennan and Lindsay v. Romano turn on whether a patient knew or should have known that she was harmed by psychiatrist's and surgeon's professional treatment.

Some states limit the discovery rule to foreign objects in the body. In Massachusetts, one must show blameless ignorance and the element of "knew or should have known."

Treatment and consent

The standard applied by the majority of jurisdictions to determine whether a physician provided the patient with enough information when seeking consent has traditionally been the professional standard of materiality which a reasonable medical practitioner would perceive and make under the same or similar circumstances as relevant to the patient.  The lay standard of materiality presents that information which the average reasonable patient wants to know. States are equally split on these two standards, and once the patient is informed then the jury decides what the average doctor would have thought was important to the patient.

In Canterbury v. Spence, the court found that the professional standard violated the patient's right of self-determination and held that in order for the patient to give informed consent, s/he must have all the "material" information regarding "the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the results likely if the patient remains untreated." The patient owns the right to determine what is to be done to or with his or her body (Cardozo). Massachusetts under Harnish applies the lay standard thus dispensing with the need for an expert witness.

  1. medical emergency; where a physician is expected to render life-saving care to a patient whether or not the patient or a close relative is present to consent to treatment;
  2. waiver, when a patient determines that s/he knows or understands so little about the medical procedure in question and is in no position to make an informed judgment, or is under such stress that s/he is unable to make an informed judgment, or a language barrier exists that cannot be overcome by translation, some courts may consider that the patient has waived his/her right of informed consent;
  3. therapeutic privilege, where the physician under certain limited circumstances may have the right to withhold information that is pertinent to the informed decision-making because the physician believes that disclosure would be harmful to the patient. The standard for invoking this privilege is the "reasonable practitioner" standard. Therapeutic privilege was also asserted in Canterbury as appropriate only in such cases where it appears that risk disclosure poses such a threat of detriment to the patient as to become infeasible or contraindicated from a medical point of view. The court also noted that even when the privilege is invoked, the physician must still provide the patient with information that is relevant and not harmful to the patient. It is not a blanket privilege.

How social and political forces mold the law

  1. if the tribunal determines the case raises a question of liability, it can proceed to trial.
  2. if not, the case can proceed only proceed with a $6,000 bond posted with the court by the client; if the case is lost, this amount is applied towards defendant's costs.
  3. if the tribunal is thought to be mistaken, its finding may be appealed to the Appeals Court. If no bond is posted and the appeal from the tribunal's decision is successful, the case can go ahead as if without a bond. If the tribunal's finding is upheld on appeal, everything is over.

To "get by" the tribunal there must be:

  1. proof of negligence, usually in the form of proving causation by an expert through a letter stating: (a) the expert's credentials, (b) treatment below the applicable standard of care; (c) maltreatment caused the injury.
  2. proof of damages
  3. proof of a doctor-patient relationship. With Santos v. Kim it is enough that the plaintiff prove that the defendant is the provider of the medical services and provided those services to the plaintiff

Does the competent patient have a right to resist treatment?

In Shine v. Vega a patient, in an emergency, needed to be intubated; the physician in the hospital did not obtain her consent. The courts notes:

"In the often chaotic setting of an emergency room, physicians and medical staff frequently must make split-second, life-saving decisions. Emergency medical personnel may not have the time necessary to obtain the consent of a family member when a patient is incapable of consenting without jeopardizing the well-being of the patient. But a competent patient's refusal to consent to medical treatment cannot be overridden whenever the patient faces a life-threatening situation."

This is the flip side of informed consent, and the SJC has decided that if a patient is conscious and competent, informed consent must be obtained before subjecting the patient to treatment, even if this decision is stupid and life-threatening. Lack of capacity, for example, would be encountered with an unconscious patient (whose spouse or next of kin gives permission).

The test is whether the patient has the capacity to understand. In Massachusetts for adults this is the capacity to understand the issue, situation, advice given, pros and cons; it is a minimal test. For minors the decision rests with the parents, guardian or next of kin. Negligently failing to obtain this consent from the patient before subjecting the patient to treatment is battery.

Time is a significant factor in an emergency;  the court can appoint a guardian to expedite and facilitate matters over the body or a conservator to take charge of the property or manage the affairs of an incompetent person.

Where parents, guardian or next of kin in Massachusetts are refusing life-saving help, and the situation is life-threatening, and the patient is incompetent, the court can apply the doctrine of substituted judgment; it takes the evidence and makes a decision by putting itself in the shoes of the incompetent person and asking if that person were competent, would that person refuse treatment.

Peer Review Statute

A peer review statute usually generally looks to the self-government of doctors in a licensed hospital or clinical setting. A health provider's efforts in a case or series of cases will be reviewed by a group of peerswith like background and trainingwhich then decides if the provider in question should be assisted, disciplined, prevented, etc. because there is a claim of sub-standard treatment. A plaintiff in a case, of course, attempts to get the results of peer review through discovery.

  • Massachusetts statute GL 111 203 reflects this process by specifying provisions for reporting conduct in a licensed hospital by a health care provider that indicates incompetency to committee and hospital officials. The SJC has decided that such a peer review report is confidential, not discoverable and not subject to subpoena in a judicial proceeding.
  • Incident reports, however, are produced by hospitals to record any adverse event. The SJC has determined that these are generally discoverable from the hospital, unless such reports are filed with the peer review committee or sent to an attorney to be under the claim of lawyer-client privilege.

Hospitals have an interest in self-policing, and allowing reports of this kind to be used later against a hospital may not further the rationale to produce such reports in the first place in the interest of self-improvement.

Pharmaceutical Companies

Pharmaceutical companies manufacture drugs for distribution to the health care industry and produce a so-called "package insert" to notify and warn potential users of dosage, side effects, adverse reactions, etc. This medical information is collected in the ubiquitous Physicians Desk Reference (PDR). Tresemer v. Barke (Dalkon Shield) states that the duty of the manufacturer to adequately warn is discharged by its warning of possible and actual dangers to the physicians, as "it would be virtually impossible for a manufacturer to comply with the duty of direct warning, as there is no sure way to reach the patient." For example, if a physician prescribes a certain drug and the patient subsequently develops hypertension, an expert witness can be called in to testify to the presence or lack of such side effects. A learned treatise can also be used, the package insert, to clarify an interaction with other drugs; this however, is an evidentiary issue and as hearsay, is an out of court statement. Although a  vehicle is needed to use it as evidence, most courts disallow proving negligence through a package insert.

What if the company does not adequately warn the patient who suffers an adverse event from a drug prescribed by a physician? Once a physician is adequately informed by the manufacturer of the actual and possible dangers of a product, the physician acts as a learned intermediary between the patient and the ... manufacturer, thus breaking the chain of liability."  An action for failure to warn the patient may be maintained against the physician under Tresemer (and adopted by most states) due to the continuing confidential relationship between the physician and patient and the fact that the danger arose from that relationship.

Caps and curbs on malpractice awards

Another legislative tool to respond to the number of malpractice cases is the establishment of limits on damages awarded by the courts such as $100,000 for government, $500,000 for pain and suffering and $20,000 for non-profits ( in Massachusetts).   Under GL 231 60F, medmal suits which go to a jury must answer special questions asked, such as to the amount of medical bills incurred in the past, in the future, past loss of earnings, likely loss of future earnings, specific amount for pain and suffering up to the date of trial and after. If an award is more than $500,000, the jury must explain its reasoning on a form provided; and if future damages are awarded, the jury must indicate a specific estimate of how far into the future.

  • collateral source [of income] rule: a plaintiff who is able to protect him/herself from possible loss by carrying insurance or receiving compensation from other "collateral" sources, has no obligation to reduce the obligation of a wrongdoer by the amount received from a collateral source. Plaintiff cannot get a second payment from, for example, an insurance company; the award is deducted.


abandonment of care: the standard is one of reasonableness and an action for abandonment will not lie when sufficient grounds for termination exist along with reasonable efforts on the part of the physician to find alternative care for the patient.

apportionable damages: damages which can be fairly and proportionately divided and distributed among two or more tortfeasors, as opposed to unapportioned.

average qualified physician: a standard against which physicians are measured.

Belinkoff test: the skill of the average member of the profession practicing the specialty, taking into account the advances in the profession and medical facilities available, Brune v. Belinkoff.

benefits rule: in Massachusetts, the award of the costs of rearing a child as offset by the benefits provided by that child.

blameless ignorance: the plaintiff should not be faulted where the problem is inherently unknowable.

borrowed servant doctrine: This arises in cases where a staff doctor uses and controls an employee of the hospital, e.g. nurse. If the borrowed servant is negligent while working for and controlled by a "new" party, the new party can be sued, not the first employer.

"but for" doctrine: a defendant who starts a chain of reaction is responsible for all foreseeable injuries.

"captain of the ship" doctrine: the doctor has full control of everybody.

charitable immunity: In Massachusetts, GL 231 85K, any not for profit corporation defendant if found liable is only responsible for $20,000.00.

collateral source [of income] rule: a plaintiff who is able to protect him/herself from possible loss by carrying insurance or receiving compensation from other "collateral" sources, has no obligation to reduce the obligation of a wrongdoer by the amount received from a collateral source.

comparative negligence: a doctrine that compares the relative degree of fault attributed to a defendant and a plaintiff in a negligence suit. It states that a plaintiff may recover damages from a defendant in a negligence suit even though the plaintiff may be guilty of some negligence itself, provided that the negligence of the defendant was greater. The damages awarded the plaintiff will be diminished in proportion to the degree of negligence attributed to him/her.

conservator: person appointed by the court to take charge of the property or manage the affairs of an incompetent person

conspiracy of silence: the reticence usually exhibited by one physician to determine whether a colleague is liable for not meeting the required standard of care in a strict locality setting.

control: the authority under which an employee works as to actual employment at the time, e.g., under the control of the hospital, of the physician

contributory negligence: lack of ordinary care for one's safety on the part of an injured plaintiff, which, when added to the negligence of another, contributes to the cause of an injury. It is an affirmative defense to a negligence charge, but has often been replaced by the doctrine of comparative negligence.

corporate duty/liability doctrine: to carefully select, train and supervise employees

directed verdict: a jury verdict ordered by the court. In civil cases, a party may receive a directed verdict if the opposite side does not present a prima facie case or a  necessary defense.

discovery Rule: statute of limitation does not begin to run until the happening of an event which puts the plaintiff on notice, i.e., when the plaintiff knows or should have known.

dual capacity doctrine: a person should be able to sue a negligent provider who is a co-worker in a facility or institution because medical service was not given in the capacity of co-worker, but medical service provider.

ERISA: Employment Retirement Income Security Act; federal.

extension doctrine: the court allows a physician to use his/her reasonable judgment in expanding the scope of an operation.

for-profit corporation: money goes to stock holders.

Good Samaritan law: in Massachusetts under GL c. 112 12B, a licensed provider who provider services in good faith and without expecting payment is not held liable for any negligence unless it is gross negligence.

guardian: appointed by a court when a person is under disability and in need of court assistance and court protection

incident report: produced by hospitals to record any adverse event; discoverable.

informed consent: certain information about the medical procedure, its risks and benefits, its costs and side effects, must be made available to the patient before consent is given.

intolerable inquiry: when impaired life must be weighed against no life, most courts find this to be an intolerable inquiry.

joint and several liability: any one tortfeasor can be liable for the whole, single, indivisible and unapportioned injury.

joint tortfeasor: two or more persons whose negligent conduct, in concert or individually, united to injure a third person and who are therefore jointly and severally liable for the injury.

lay standard of materiality presents that information which the average reasonable patient wants to know in order to make an informed consent.

learned intermediary doctrine: a physician, once adequately informed by the manufacturer of the actual and possible dangers of a product, acts as a learned intermediary between the patient and the ... manufacturer, thus breaking the chain of liability.

learned treatise rule: A statement of fact or opinion on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in the discretion of the court, and if the court finds that it is relevant and that the writer of such statement is recognized in his profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitaria, as evidence tending to prove said fact or as opinion evidence; provided, however, that the party intending to offer as evidence any such statement shall, not less than three days before the trial of the action, give the adverse party notice of such intention, stating the name of the writer of the statement and the title of the treatise, periodical, book or pamphlet in which it is contained. GL c. 233 79C.

legal cause: the Restatement's term for "proximate cause."

loss of (a) chance doctrine: assuming that the defendant-physician negligently misdiagnosed the patient's condition, and that the patient would have had a certain percentage of a chance of survival even with a timely diagnosis and proper careand regardless of whether it could be said that the defendant caused the decedent's deaththe defendant-physician caused the loss of a chance, and that chance-interest should be completely redressed in its own right.

medical cause of action: requires that four elements be established (1) obligation of due care; (2) duty is violated; (3) caused by the breach; (4) compensable damages.

medical negligence: conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Restatement Second of Torts 282 (1965).

malpractice: failure to perform according to the standard; in Massachusetts, what the average qualified physician would or would not have done.

Mary Carter agreement:  one in which the settling defendant possesses a financial stake in the outcome of the case and the settling defendant remains a party to the litigation.

Massachusetts medical tribunal: a three-person "review" panel held in Superior Court consisting of a superior court judge, an attorney and health care provider from the same discipline as the defendant which allows a medmal case to go to trial only if the directed verdict standard is satisfied.

national standard: where the general provider is held to exercise the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession.

New York Rule: The doctrine, abandoned in Bing v. Thunig, which  allowed the hospital an immunity for the negligence of its hospital employees acting within scope of employment The hospital is liable to a patient for injuries sustained through negligence of  employees.

non-delegable duty: cannot shift duty with impunity

not-for-profit corporation: money goes back into the corporation.

peer review report: a report indicating incompetency or lack thereof, issued by peer group of like background and training, occasioned by a health care provider's specific conduct in a licensed hospital in a case or series of cases.

percipient testimony: plaintiff is not entitled to the opinion of the witness, only percipient (what is perceived) testimony. Thus an expert witness cannot be summoned to testify if not paid.

physician: The words "physician" and "dentist" shall not include any person who is not licensed to practice as such under the laws of the jurisdiction within which such services were rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered, GL c. 233  79G.

privity: a relationship of common interests or common legal rights, e.g., privity of contract is required in a contract action; the defendant must be a party to the plaintiff's contract

professional standard of materiality: what a reasonable medical practitioner would perceive and make under the same or similar circumstances as relevant information for the patient to make an informed consent.

qualified privilege: in those cases where a patient seeks the services of a physician for reasons other than medical treatment, the confidentiality of their relationship is qualified (e.g. worker's compensation examination results).

reasonable degree of medical certainty: the opinion sought from a provider.

res ipsa loquitur doctrine: tort doctrine which creates a permissible inference of negligence unless the defendant can prove otherwise when (a) the defendant had exclusive control of the thing producing injury and (b) the injury would not normally occur without negligence, e.g., a baby exhibits clear dog bite marks and the defendant owns the only dog in the neighborhood.

respectable minority: one of the standards against which physicians are measured.

similar locality standard: where the provider is held to exercise the standard of care of the average health care provider in a similar locality, e.g. similar size, geographic location and distance from a major medical center.

standard of conduct: what the "reasonable practitioner" would do in like circumstances" and requires that the physician exercise that degree of skill and care that would be expected of the average qualified practitioner practicing under like circumstances.

standard of proof: for medical malpractice is preponderance of the evidence; for child custody it is clear and convincing. There is also a category called "clear proof" in Sullivan.

statute of limitations: the statute begins to run when the tort occurs; the party has 3 years within which to commence action. In a regular tort case, a child has 3 years after reaching majority to commence an action

statute of repose: GL 231 60d, suits by minor against providers to be commenced within 3 years, except...

statutory mandated reporting: the statutory requirement that a physician report otherwise confidential information such as child abuse, gunshot wounds, and contagious diseases. This is a conditional privilege and disclosure is limited to to the information required to carry out the intent of the reporting requirements.

strict locality standard: where the provider is held to exercise the standard of care of the average health care provider in that locality.

substituted judgment; a doctrine whereby the court takes the evidence and makes a decision by putting itself in the shoes of the incompetent person and asking if that person were competent, would that person refuse treatment.

termination of patient care: if a physician-patient relationship has already been initiated, proper notice of termination is necessary, along with whatever measures are reasonably necessary to secure treatment with another physician.

testimonial privilege: in Massachusetts there are common law privileges of lawyer-client and husband-wife as well as statutory psychotherapist-patient and clergy-penitent privileges. Note, however, a physician has no testimonial privilege in Massachusetts and can be made to testify in a judicial proceeding to confidential information. The doctor, of course, has an ethical duty (AMA Ethical Rules) in this regard and may be sued civilly.

therapeutic privilege: wherein the medical profession declares that there are instances when it would not be necessary to tell patients of the risks.

thin skull doctrine: take the plaintiff as you see him.

verdict, general: find for either plaintiff or defendant.

verdict, special: jury is asked different separate questions as to the different elements of negligence for each defendant.

wrongful birth (child has defects): but for the physician's negligence, a wanted child was born (with defects, handicaps).

wrongful life (suit by child): but for the physician's negligence, an unwanted child would not have existed.

wrongful pregnancy (normal child results): but for the physician's negligence, an unwanted child is conceived (failed birth control methods).


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