If you think you have a basis for a medical malpractice case, you must consult a lawyer who is expert in the field. Medical malpractice litigation is not for part-timers or do-it-yourselfers. You can involve the state medical board if you don't have a lawyer. It is a good idea to consult with such a lawyer before deciding whether to make a complaint to the medical board. Sometimes a medical board complaint is an advantage to the plaintiff in a malpractice lawsuit, sometimes not.
Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to... more
Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.
The reason that attorneys on an informational and marketing site like AVVO in good faith respond with the recommendation to obtain an initial consultation with an attorney is that medical malpractice is a challenging complex area of the law not only in substantive law but also by procedure. If you think you have a case you must consult with a med mal attorney.
To more directly answer your question about "the act of malpractice", here is a bare bones summary about the basic elements of malpractice:
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Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only.... more
Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.
A board action or complaint is not necessary in context of bring a lawsuit against a physician. That is an administrative process with the state board that licenses and regulates physicians. The Board can penalize a physician if they find that he or she violated the standard of care. Typically the patient doesn't need to hire a lawyer and the state's medical malpractice laws (even the statute of limitations) is beside the point as they only apply to lawsuits & not the administrative complaint. The downside for the patient is that no monetary compensation is awarded.
A lawsuit means a claim for monetary compensation for injuries. It's a civil court claim. The burden of proof must be met, which in most states is "a preponderence of the evidence," as opposed the the criminal standard of "beyond a reasonable doubt." Lawyers must be engaged. Medical experts must provide testimony to prove the case. Litigation is expensive. The plaintiff must prove that the defendant violated the minimum standard of reasonable medical care, caused significant injuries, and the injuries would have been avoided had the medical error not been committed.
The first thing anyone ought to do if they think they have suffered actionable malpractice is to discuss it with someone who knows how to evaluate medical malpractice cases.
Every law student learns about the elements of negligence: Duty, Breach of Duty, Proximate Cause, Cause in Fact, Damages. Professional negligence, of which medical malpractice is one type, is a special kind of negligence the elements of which require a breach of the applicable standard of care for the duty to be breached. Additionally in medical malpractice, as a general rule, the standard of care, breach of the standard of care, causation, and damages must all be proved through expert testimony, which typically involves hiring doctors at a cost of hundreds of dollars per hour. Except in the plainest of cases (hemostat left in patient, wrong leg amputated, etc.), where no expert testimony is necessary to understand the malpractice, expert testimony will be required, and in its absence the case will not make it to trial.
So evaluation to ascertain whether actionable malpractice even occurred is just the first step. But you are asking about procedures, "protocol." In my view, that puts the cart before the horse. Find out whether you even have an actionable malpractice claim by consulting someone who handles such claims in your state. There will be plenty of time to discuss "protocol" if in fact you have an actionable claim. And if not, you'll find that out too.
Not legal advice as I don't practice law in Massachusetts. It's just my two cents on your question in light of general principles of law. If you need legal advice, please consult a lawyer who holds Massachusetts licensure. That's not me.