The laws in Massachusetts allow for any family whose child suffered serious medical repercussions due to a birth injury to file a medical malpractice suit against the attending doctor, healthcare team, or healthcare facility where the injury occurred. In order to do so, the laws regarding birth injury lawsuits must be understood and followed.
Statute of Limitations
If the lawsuit is not filed in a timely manner, the courts can refuse to hear the suit at all. Because evidence can be hard to prove in a medical malpractice lawsuit after a certain time frame, there is a specific statute of limitations for birth injury lawsuits in Massachusetts. Plaintiffs have three years after the birth to file a malpractice suit, unless the injury was not discovered within that three years. In that case, the plaintiff may file for up to three years after the discovery, provided the injury was discovered within a reasonable time frame.
No matter when the discovery may have been made, the Massachusetts state law does not allow for birth injury lawsuits to be filed after seven years have passed from the date of birth. The only exception to this statute of repose is if the injury resulted in a surgery wherein a foreign object was left in the child’s body. In that case, the case can be filed after the foreign body is discovered.
Damage Caps
In addition to filing the lawsuit on time, plaintiffs need to understand the damage caps for malpractice lawsuits in Massachusetts. Non-economic damages, which include things like loss of companionship, quality of life, or pain and suffering, may not exceed 500,000 dollars. This cap can be overruled by a judge if the evidence shows that the plaintiff has suffered a permanent loss of bodily function, or substantial physical disfigurement.
Economic damages, those which are tied to the costs of medical care and legal fees, are not capped by the Massachusetts government.
Offer of Proof Tribunal
After a case is submitted to the Massachusetts court, the plaintiff’s lawyer will submit records to a special tribunal, which consists of a medical doctor in the same field as the defendant, a judge, and an attorney. Together the tribunal will decide whether, in their medical and legal opinions, any malpractice occurred. Their judgment will be used as evidence in the court case. If the tribunal does not find in favor of the plaintiff, a 6,000-dollar bond must be paid by the plaintiff in order for the case to continue on to the court.
Other Massachusetts Laws
Other laws may affect the birth injury lawsuit filed in Massachusetts. One of those is the comparative negligence rule, which states that the plaintiff can be held responsible for some of the birth injury. In the event that the mother did not follow instructions given by the doctor during the birth, or chose to ignore medical advice during the birth, the jury can find that the plaintiff is partially responsible, and can diminish the damages awarded by a percentage related to how liable the plaintiff is.
For example, if the plaintiff is 25% responsible for the birth injury suffered, the damages awarded can be reduced by 25%. If the plaintiff’s liability is equal to that of the defendant, the jury or judge can rule that no damages will be awarded at all.
In order to file a birth injury lawsuit properly under the rules of Massachusetts, a lawyer specializing in medical malpractice suits should be contacted as soon as possible after an injury occurs. This will ensure that the case is presented to the tribunal and brought before the court before medical bills begin to build up for the care of the injured child.
Sources:
http://www.alllaw.com/articles/nolo/medical-malpractice/laws-massachusetts.html
http://medstak.com/state-laws/massachusetts-birth-injury-lawyer/