Medical Malpractice Statutes

The Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. have provided this guide to Massachusetts medical malpractice law.

All fifty states allow patients injured by their doctors to sue for medical malpractice and the standards for proving medical malpractice are virtually identical from state-to-state. How did this uniformity come to be? Did the legislatures of all fifty states get together, hash out the topic of medical malpractice and then enact laws with virtually identical wording?

The answer is no. Medical malpractice law, in Massachusetts and elsewhere, is part of the common law -- the rich tradition of "judge-made law" that we inherited from our English ancestors and upon which we have embroidered our own legal doctrines. State legislatures never faced the task of inventing medical malpractice law from scratch because medical malpractice law has been developed by judges relying on legal concepts with centuries-old pedigrees.

But the legislatures of various states have passed medical malpractice laws and these statutes (the laws passed by legislative bodies are commonly referred to as "statutes") affect the periphery of medical malpractice law. Here in Massachusetts, we have a fair amount of these medical malpractice statutes. They are mainly procedural in nature, such as the statute of limitation and the statute of repose, but as every lawyer knows, procedure matters just as much as substantive law. So, without further ado, here is a guide to the important Massachusetts medical malpractice statutes:

Massachusetts General Laws Chapter 260 Section 4. M.G.L. c. § 4 sets forth both a statute of limitation and a statute of repose that apply to medical malpractice actions. The difference between a statute of limitation and a statute of repose is subtle but important. A statute of repose eliminates all liability for events that occurred a certain time in the past even if those events only cause an injury in the present day. So for example, if a manufacturer sold a product twenty years ago and that product is dangerous and defective and causes an injury today, the manufacturer would not be liable if the injury occurred in a state with a ten-year statute of repose.

The statute of repose for Massachusetts medical malpractice cases is seven years and it applies to every type of medical malpractice case, except for medical malpractice cases, "based upon the leaving of a foreign object in the body." (That would mean a medical malpractice case where, say, a surgeon leaves a sponge in the patient's body and the patient is sewn up with the sponge still inside of him. That type of medical malpractice is known as gossypiboma and is discussed here). The practical effect of the statute of repose is that if a doctor committed medical malpractice in your treatment eight years ago and you only learn in the present day that you've been a victim of medical malpractice, you will not be able to recover any damages unless your case was one where a doctor left a foreign object inside of you.

The statute of repose is very unforgiving. Let's say that, for the past ten years, a doctor has been treating you continually for a chronic condition, such as kidney failure, and you discover that, eight years ago, the doctor committed medical malpractice. Even though the doctor's treatment of you has been ongoing, rather than a part of ancient history, the statute of repose will still operate to protect the doctor from liability for his medical malpractice committed eight years ago. Rudenauer v. Zafiropoulos, 445 Mass. 353 (2005); Nett v. Bellucci, 437 Mass. 630 (2002).

Statutes of limitations are somewhat more humane than statutes of repose, but not very much so. A statute of limitations governs how long you can wait to sue after developing a right to sue for some claim. In Massachusetts, a three-year statute of limitations applies to victims of medical malpractice, so long as the patient was older than six years of age when the medical malpractice occurred. (A separate statute of limitations, Massachusetts General Laws c. 231, § 60D, applies to medical malpractice cases where the patient was younger than six).

With statutes of repose, it is always crystal clear when the clock starts ticking: it starts running the moment the medical malpractice (or other tortious act) is committed. With statutes of limitations, the question is always the same: When did the clock start to run? Did it start running when the medical malpractice occurred, even if took a couple years for the injuries from the medical malpractice to manifest themselves?

Like a number of jurisdictions, Massachusetts applies a so-called "discovery rule" to the running of statute of limitations. Franklin v. Albert, 381 Mass. 611, 617 (1980). That means that the clock on the three-year medical malpractice statute of limitation does not start to run until the patient either discovers, or should have discovered, that he suffered injuries that may have been connected to his medical treatment. Lindsay v. Romano, 427 Mass. 771 (1998). So the clock on the statute of limitations will begin running even if the patient does not have definitive proof that she has been the victim of medical malpractice.

Statutes of limitations, unlike statutes of repose, are also subject to tolling. "Tolling" is the equivalent of hitting the "pause" button on a statute of limitations; tolling stops the sands from running out of the statute of limitation's hourglass. A statute of limitations might be tolled by different circumstances -- for instance, if a plaintiff loses his sanity for a period of time and later regains it, the statute might be tolled during his period of insanity. Likewise, if a defendant's fraud concealed important facts from a plaintiff, that might also serve to toll a statute of limitation.

It is fair to say that statutes of limitation and statutes of repose can be pretty confusing. But the upshot for any victim of medical malpractice is clear: Get to a medical malpractice lawyer as soon as possible and have the lawyer sort out these confusing issues.

Don't be afraid to contact a lawyer to discuss a possible medical malpractice claim that you might have, even if you don't yet have ironclad proof to back up your claim. A medical malpractice lawyer will be able to investigate your case and obtain the information you need to connect the dots. Remember: the statute of limitations starts running as soon as you have reason to believe that you are the victim of medical malpractice, whether you know that to be a fact or not.

A final reason to visit a medical malpractice lawyer as soon as you have the slightest inkling that you may have been the victim of medical malpractice is that medical malpractice cases are incredibly complex and a lawyer will want time to investigate your case before deciding whether to accept it. If you go into a medical malpractice lawyer's office three days or even a month before the statute of limitations is about to run, many malpractice lawyers will turn you away, even if you seem to have a very promising case.

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