Manufacturing Defects

A manufacturing defect is a term used to describe a flaw or abnormality in a product that was caused by a mistake or error during the manufacturing process. This defect makes the product different from other products of the same type and can result in the product being unsafe or unusable.

A defective product can also cause financial hardship for the consumer, as they may be required to pay for medical expenses, lost wages, and other damages. This is why it is important for consumers to understand their legal right to a defective product attorney.

In addition to helping individual consumers, a product defect attorney also plays an important role in promoting public safety. By holding manufacturers accountable for their products, they help to ensure that companies take the necessary steps to identify and address potential defects before they reach the market.

Design Defects

Unlike manufacturing defects, which occur during the production process, design defects are present in the product from the outset. This means that every product made according to the same design is potentially dangerous. Examples of design defects include a car that has a tendency to roll over easily or a medical device that is prone to failure. One of the most infamous medical device design defects is the hernia mesh case.

Design defects can be particularly dangerous because they affect an entire line of products, rather than just a few isolated instances. In order to pursue a design defect claim, a plaintiff must prove that the design of the product was unreasonably dangerous and that there was a feasible alternative design that would have made the product safer. A product defect attorney can help you determine whether you have a valid design defect claim and assist you in pursuing compensation for any injuries or damages you have suffered.

Marketing Defects

Marketing defects are another type of defective product liability claim that can arise when a manufacturer fails to provide adequate warnings or instructions for the safe use of a product. This can include a failure to disclose known side effects of a medication or a failure to provide sufficient warnings about the dangers of a particular product’s use.

Marketing defects can also occur when a manufacturer fails to provide clear and complete instructions for the proper use and operation of a product. In order to pursue a marketing defect claim, a plaintiff and their product defect attorney must prove that the manufacturer failed to provide adequate warnings or instructions and that this failure directly led to their injury or damages.

The Law Offices of John C. Manoog III | Product Defect Attorney

Defective products are more than just lost money, they can result in lost lives. You have the right to a product defect attorney. If you or a loved one has been injured by a malfunctioning product, the experts at our Cape Cod law firms are here to help. With over a century of case experience, and a passion for compassion, we’ve stood the test of time. If you’re ready to receive personalized and dedicated legal representation, contact us to speak to a defective product attorney today.

The Alleged Harm

Allegedly, the defendants treated the decedent for perimenopause symptoms. She was given a topical hormone gel, but she was not told about the dangers of using it. The defendant nurse admitted that she did not inform the decedent that the gel increased the danger of blood clots because she did not feel it was a significant risk. Three years after she began using the gel, the decedent began to experience shortness of breath, and she was diagnosed with pulmonary hypertension and pulmonary embolisms. She underwent surgery and took medication to address her embolisms, but neither treatment was successful.

It is reported that four years later, at the age of 43, the decedent died due to blood clots in her lungs. Prior to her death, she filed a medical malpractice claim against the defendants, which the plaintiff, her husband, pursued after her death. The matter ultimately went to trial, and the jury found in favor of the defendants on the grounds that there was inadequate evidence that the defendants’ negligence caused the decedent’s harm. The plaintiff then appealed. Proving Causation in Medical Malpractice Cases

The salient issue on appeal was what evidence a plaintiff must present to prove causation in a negligence lawsuit. The court stated that a defendant could not be held accountable for injury unless the defendant actually caused the alleged harm. Causation used to be divided into two categories: cause in fact, or but for causation, and legal or proximate cause. A defendant’s actions or omissions will be a cause in fact of an injury if the injury would not have happened without them. If the injury suffered was a foreseeable possibility of the defendant’s activities, the behavior will be deemed the proximate cause.

The court explained that many courts used the substantial factor test, which allows a finding of negligence in circumstances where the defendant’s actions had a significant part causing the plaintiff’s injury, instead of the but-for test. The court rejected the plaintiff’s claim that the substantial factor test applied in the subject case, however, stating that the approach is inappropriate in circumstances when there are various potential causes of injury rather than numerous sufficient causes of harm. Thus, the court upheld the jury’s verdict, which relied on the but-for test.

Speak to a Trusted Cape Cod Attorney

Medical negligence can cause significant injuries, and in some cases, the harm is fatal. If you lost a loved one because of careless medical treatment, you should speak to an attorney about your options. The trusted Cape Cod medical malpractice attorneys of The Law Offices of John C. Manoog, III, are mindful of the devastation an unnecessary death of a loved one can cause, and we will fight tirelessly on your behalf. You can reach us through the form online or at 888-262-6664 to set up a meeting.

It works like this: the plaintiff must be able to prove, by a preponderance of the evidence, not only that he or she was owed a duty of care, that this duty was breached, and that he or she suffered harm but also that his or her damages were caused by the defendant’s actions or in actions. However, “cause” or “causation” is a term of art in the world of negligence law. Something can be the actual cause of harm without necessarily being the legal cause of such damages.

Public policy factors into the development of this area of the law. Would it be wise to hold a defendant liable for a “freak accident,” even if, technically, his or her breach of duty resulted in damages to the plaintiff? Probably not. Somewhere between such occurrences and conduct that is so likely to result in harm as to be considered intentional – and possibly subject to punitive damages – lies the type of conduct that the principles of negligence are designed to govern.

Facts of the Case

In a recent medical malpractice case considered on appeal by the Supreme Judicial Court of Massachusetts, the plaintiff was the personal representative of the estate of a woman who died from complications arising from chronic thromboembolic pulmonary hypertension (CTEPH), which she developed after being prescribed with a progesterone cream to treat symptoms of perimenopause. At the time of her death, the decedent was 43 years old. The plaintiff’s complaint alleged that the defendant medical providers (which included a nurse practitioner and the physician who employed her) were liable for the decedent’s death on several theories, including negligence, failure to obtain informed consent, and loss of consortium.

The case was tried to a jury and resulted in a verdict in favor of the defendants. The plaintiff filed a motion for a new trial. After the trial court denied the plaintiff’s motion, the plaintiff appealed. The Supreme Judicial Court transferred the case from the intermediate Appeals Court of Massachusetts on its own motion.

Decision of the Court

The court affirmed the trial court’s entry of judgment on the jury’s verdict in favor of the defendants. In so doing, the court clarified the law of Massachusetts with regard to the element of causation, concluding that the traditional “but-for” factual causation standard was the appropriate standard to be employed in most cases, including those involving multiple alleged causes. The court noted that this was the approach recommended by the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010). In the court’s view, the “substantial factor” test was unnecessarily confusing and should be discontinued, even in multiple sufficient cause cases.

Because the trial court below had instructed the jury using traditional but-for causation principles (which required that the harm complained of be within the scope of the foreseeable risk that might arise from the defendant’s breach of duty), the trial court’s entry of judgment upon the jury’s verdict was proper.

Speak to a Lawyer About a Cape Cod Medical Malpractice Case

Being the victim of a doctor or nurse’s mistake can be very costly, both in economic terms and in terms of one’s health and well-being. If a medical professional’s negligence has caused personal injuries or wrongful death to you or someone in your family, you need reliable legal advice about your potential claim. Call the Law Offices of John C. Manoog III at 888-262-6664 to schedule a free consultation with a helpful Cape Cod medical negligence attorney and learn more about legal rights.

Sometimes, a mistake was obviously made, but the doctor insists that his or her error did not harm the patient in any meaningful way. This argument is especially prevalent in cases involving a missed diagnosis.

In such cases, the plaintiff believes that, had a proper diagnosis been made in a timely fashion, he or she would have had more treatment options and/or a better outcome of the illness that the doctor somehow missed. In turn, the physician is likely to claim that the illness – and the ultimate result thereof – was bound to happen anyway, such that his or her mistake should not result in monetary compensation to the patient or his or her family.

Facts of the Case

In a recent appellate case, the plaintiffs alleged that the defendant physician had committed malpractice by failing to perform a proper examination and/or discuss the possibility of certain further testing on the male plaintiff (who was joined in the litigation by a family member, presumably his spouse) during an appointment in 2010 and that, as a result, the plaintiff’s prostrate cancer was not detected for some two years. The case was tried to a jury and resulted in a special verdict finding, among other things, that the plaintiffs had proven $0 in damages, even though the defendant’s failure to discuss the test had caused harm to the male plaintiff. The plaintiffs appealed from that judgment.

The Appellate Court’s Opinion

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s ruling. On appeal, the plaintiffs insisted that they were entitled to an additur because their damages had been “so incontrovertibly proven” that the jury’s verdict could not stand. In rejecting this request that a more reasonable damages award be assessed against the defendant, the reviewing court noted that the plaintiffs were not entitled to pursue a theory of damages during the appellate process that was not fairly presented during the trial of the case to the jury.

In the appellate court’s view, the plaintiffs were attempting to raise a new theory on appeal, namely that the male plaintiff was entitled to damages resulting from the burden of his alleged need to undergo more extensive medical treatment because of the delay in his diagnosis resulting from the defendant’s medical negligence. In affirming the $0 verdict entered in the court below, the court noted that there had been expert testimony at trial to the effect that, because of the inherently aggressive nature of the plaintiff’s particular cancer, the delayed diagnosis did not result in any difference concerning his treatment or prognosis. In other words, in the expert’s opinion, the plaintiff’s outcome depended only on how the cancer responded to treatment – not to when exactly it was discovered.

Schedule an Appointment to Discuss a Possible Medical Malpractice Case

Medical malpractice cases are often hard-fought. Doctors abhor any implication that they made a mistake that harmed a patient or cost a patient his or her life, and the insurance companies that represent those in the medical profession do not like to pay out settlements or verdicts. Having an effective legal advocate in your corner is essential if you feel that you are owed compensation for a healthcare provider’s mistake. If you need to talk to an experienced Cape Cod wrongful death attorney about a possible missed diagnosis or other act of medical negligence, the Law Offices of John C. Manoog III can help. Call us at 888-262-6664 to schedule a complimentary case evaluation today.

However, it is important to note that medical malpractice cases can be difficult to pursue. The insurance companies that represent healthcare facilities and medical professionals have plenty of financial resources to fight a finding of liability, if possible.

It is important to consult a knowledgeable malpractice attorney if you believe that you have a medical negligence claim. An attorney experienced in this area of the law can help you review your medical records, consult an appropriate expert witness to render an opinion regarding whether an act of malpractice occurred, and, if the case proceeds to trial, explain the complex medical issues to the jury in a way that they can understand.

Facts of the Case

The plaintiff in a recent (unreported) case considered on appeal was a man who injured his hand in a fall in 2012. He went to the defendant hospital’s emergency department, where he was seen by the defendant nurse and the defendant student physician’s assistant, who was working under the supervision of the defendant doctor. Two days later, the plaintiff sought treatment at a different medical facility; there, it was determined that the injury was infected and required surgery. The plaintiff later filed suit against the defendants, alleging that they had committed medical malpractice and that, as a result, he had suffered pain, suffering, and loss of function.

The trial court granted summary judgment to the defendants.

The Appellate Court’s Decision

Upon review, the Massachusetts Appeals Court affirmed. The court began by acknowledging that the lower court had entered summary judgment to the hospital in a separate order than the order dismissing the plaintiff’s case against the individual defendants; because the plaintiff had failed to timely appeal that judgment, the court of appeals lacked jurisdiction to consider the propriety of the order of summary judgment as to the hospital. With regard to the individual defendants, the court was able to reach the merits of the parties’ arguments and agreed with the trial court that the plaintiff’s case was properly dismissed.

In so holding, the court reiterated the rule that to prevail in a medical malpractice lawsuit, the plaintiff had the burden of proving both that the defendant(s) breached the applicable standard of care and that this breach was the proximate cause of the injuries for which the plaintiff seeks compensation. As to the doctor, although the plaintiff had apparently consulted an expert witness, the plaintiff had failed to pay the expert within a reasonable amount of time, such that the expert would not have testified at trial had the case proceeded that far. With regard to the nurse, the plaintiff’s expert opined that the defendant nurse had breached the standard of care by not being more proactive in her treatment of the plaintiff, but the expert had not stated that any such breach was the proximate cause of harm to the plaintiff. Finally, as to the student, the plaintiff’s expert’s opinion did not address the standard of care that was applicable to a student physician’s assistant, nor did it address whether any deviation from care was a contributing cause of harm to the plaintiff.

To Schedule a Free Consultation with a Cape Cod Attorney

If you have been hurt by the negligence of a doctor, nurse, or another medical professional, you may have a claim for medical malpractice. To talk to an experienced medical malpractice attorney about your case, call us at the Law Offices of John C. Manoog III at 888-262-6664 and ask for a free consultation.

However, the inquiry does not end there. The expert must be prepared to give a formal opinion as to any deviations of care on the part of the patient’s treating physicians and how those deviations affected the patient. Ultimately, the expert may be called upon to defend those opinions in a court of law.

Because medical malpractice cases have several special requirements, it is important that the plaintiff be represented by experienced, highly qualified legal counsel. It is a given that the doctor, nurse, or hospital will have a team of legal professionals on his or her side of the case, and the plaintiff’s attorney must be prepared to wage a vigorous fight at trial, if necessary.

Facts of the Case

In a recent unreported appellate court case, the plaintiff was the personal representative of the estate of a woman who died while in the care of the defendant medical provider. The plaintiff filed suit against the defendant, asserting a claim for alleged medical malpractice. After a medical malpractice tribunal was convened, however, the tribunal decided that the plaintiff’s offer of proof was insufficient to present a triable claim. Thereafter, the plaintiff filed a surety bond in “purported compliance” with Massachusetts General Laws ch. 231, § 60B.

While the plaintiff’s case was pending, the Massachusetts Supreme Judicial Court decided a separate case, in which it was held that a surety bond “in the face amount of the statutory requirement” did not satisfy § 60B. The defendant filed a motion to strike the plaintiff’s filing of the surety bond and to dismiss her case. The trial court granted the defendant’s motion. The plaintiff sought relief from that judgment, as well as additional time in which to file a cash bond. The trial court denied both of the plaintiff’s requests.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s decision in favor of the defendant. Although the plaintiff averred that the defendant put the decedent on an antidepressant medication without her informed consent and that the decedent suffered multiple falls while taking the medication, the reviewing court found that the plaintiff’s expert had not connected the defendant’s alleged deviations from the expected standard of care to the harm suffered by the decedent. While the courts generally review a plaintiff’s offer of proof favorably and can draw reasonable inferences in favor of a plaintiff, here, the court found that there was not a sufficient offering on the issue of causation to advance the plaintiff’s claim beyond speculation or conjecture. Hence, no legitimate question of liability appropriate for judicial inquiry had been raised, in the court’s view.

The appellate court also agreed with the lower court’s rulings on the issue of the bond and on the denial of the plaintiff’s motion for post-judgment relief.

Contact a Medical Malpractice Lawyer in Massachusetts

As much as they would like for us to believe otherwise, doctors and other healthcare professionals make mistakes. When they do, serious personal injury or even wrongful death can occur. If you or a family member has been hurt by a medical worker’s negligence and need to talk to an experienced Cape Cod medical malpractice attorney about your legal rights, call the Law Offices of John C. Manoog III at 888-262-6664. We accept most medical negligence cases on a contingency fee contract, which means there are no upfront legal fees required to get your case started.

In order for a Cape Cod medical malpractice case to proceed past the tribunal and onward toward trial, there must be enough evidence of negligence by the defendants for the tribunal to find that there is a legitimate question of liability. Not every case “makes the cut,” so to speak. Sometimes, even though the patient was hurt or may even have died, there just isn’t enough evidence of wrongdoing by the doctor or other medical professional for the case to make it past the tribunal.

Of course, opinions can vary as to whether the threshold has been met. Sometimes, a plaintiff appeals a decision that would have terminated his or her case and finds legal recourse in the appellate process.

Facts of the Case

In a recent case, the plaintiff was the personal representative of a man who died while in the care of the defendant healthcare providers. The plaintiff filed a medical malpractice lawsuit, asserting that the defendants had failed to conform to good medical practice in several ways and that, as a proximate result, the decedent had passed away. More particularly, the plaintiff claimed that the decedent should have been diagnosed with an ischemic bowel and treated accordingly; because of the defendants’ significant delay in diagnosing the decedent’s condition, the decedent had allegedly suffered a complete bowel infarction and, ultimately, had died from what should have been a treatable medical condition.

The medical malpractice tribunal concluded that the plaintiff’s offer of proof failed to present a triable issue of medical malpractice against the defendants. Accordingly, the trial court dismissed the plaintiff’s case. He appealed, seeking further review from the intermediate court of appeals.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court reversed the lower court’s order dismissing the plaintiff’s malpractice case against the defendant healthcare providers. In the reviewing court’s opinion, the plaintiff had presented sufficient evidence, if properly substantiated as the case developed going forward, to raise a legitimate question of liability appropriate for judicial inquiry under Massachusetts law. Accordingly, the appellate court vacated the trial court’s order, directed that new findings be entered, and remanded the case for further proceedings.

In so holding, the court noted that several signs and symptoms of an acute bowel process had been documented by nurses, as well as by the defendants themselves, and disagreed with the defendants’ contention that the opinion of the plaintiff’s expert witness was speculative. Rather, in the court’s opinion, the records (if substantiated) showed a “classic course of worsening ischemic bowel” that was somehow missed by the defendants.

Call for an Appointment with a Cape Cod Medical Malpractice Lawyer

Proving that a doctor, nurse, or hospital has been negligent can be a lengthy process, as well as a hard-fought legal battle. If you believe that you or a loved one has been injured due to a medical provider’s mistake, you should seek legal advice right away. To schedule a free consultation with a helpful medical malpractice attorney, call the Law Offices of John C. Manoog III at 888-262-6664. We represent those injured by acts of negligence and malpractice throughout the Cape Cod area, including Hyannis and Plymouth, and we look forward to advising you about your particular situation.

The plaintiff has the duty to prove each element by a preponderance of the evidence. This requires him or her to convince the jury that the evidence weighs more in his or her favor than in the opponent’s (visualize a tipping of the scales of justice, if you will).

There are other possible remedies that can arise from an alleged act of negligence, including what was described by an appellate court as “a seldom used equitable remedy” in a case filed by a nursing home resident in 2018. The appellate court has now weighed in on the dismissal of the woman’s “complaint for discovery.”

Facts of the Case

In a recent case, the original plaintiff was an elderly woman who had been a resident of the defendant assisted living center. In her complaint, which was filed in 2018, she sought discovery regarding an accident that had occurred on the defendant’s premises and had resulted in the original plaintiff breaking her foot and sustaining several contusions. She did not seek any damages, nor did she assert a traditional negligence claim in her complaint. The trial court dismissed the plaintiff’s complaint without offering any explanation for its decision, and the plaintiff (actually, her personal representative, as the original plaintiff herself had died in the interim) sought review from the Massachusetts Appeals Court.

The defendant argued on appeal that the lower court’s decision should be affirmed, insomuch as the matter was moot because of the original plaintiff’s death and/or because any possible negligence claim that the original plaintiff could have asserted would be barred by the statute of limitations due to the passage of time.

The Appellate Court’s Decision

The appellate court reversed the lower court’s dismissal of the plaintiff’s complaint for discovery, concluding that the matter was not moot. In so holding, the court observed that, taking the plaintiff’s complaint as true, she had demonstrated that she suffered an actual injury while in the care of another, she sought to discover records of her own care, and she asserted that she needed the records to assess the viability of her potential claim against the defendant. Under these narrow circumstances, the court found that the appropriate action on appeal was to vacate the trial court’s judgment of dismissal and remand the case for further proceedings.

To Speak to a Personal Injury Lawyer

Cases involving personal injuries or wrongful death at the hands of a healthcare provider, including a nursing home or hospital, have many technical requirements. In addition to the timely filing of a complaint for damages, there are many other considerations, including the retention of one (or several) expert witnesses who can review the patient’s medical records and give testimony at trial. If you believe that you or a loved one has suffered because of a medical practitioner’s negligence, please call the Law Offices of John C. Manoog III and ask for a complimentary case evaluation. You can reach us at 888-262-6664 or through the contact portion of this website. Please be prompt in discussing your case with a qualified attorney; cases not filed within the time established by the statute of limitations are likely to be dismissed without due consideration of their merits.

In some instances, there may be the possibility of some other type of legal course, as well. However, such situations are the exception rather the rule.

In a medical malpractice lawsuit, the burden of proof rests on the plaintiff. In order to prevail on a claim for malpractice against an allegedly negligent health care provider, the plaintiff must be able to present proof that the defendant breached the applicable standard of care and that this was the proximate cause of the damages for which the plaintiff seeks monetary compensation.

Facts of the Case

The plaintiff in a recent case was a woman who underwent a treatment called “deep brain stimulation” at the defendant hospital in 2012. During the treatment, a battery-operated device was implanted in the plaintiff’s brain. Because the plaintiff’s health insurance would not cover the procedure and she could not afford it on her own, the defendant agreed to absorb the costs of the plaintiff’s care at their facility. At the time, the defendant hoped to expand its psychosurgery program and may have planned to use the plaintiff’s case to promote the program.

Although the plaintiff was initially pleased with the result of the treatment at the defendant’s facility, over time several disputes arose between parties. The disagreement culminated in the plaintiff filing a lawsuit against the defendant, asserting claims for breach of contract, misrepresentation, violation of Massachusetts General Laws ch. 93A, intentional infliction of emotional distress, and promissory estoppel. After discovery was completed, the defendant filed a motion seeking summary judgment on all of the plaintiff’s claims. The trial court ruled in the defendant’s favor, and the plaintiff appealed.

The Court of Appeals’ Decision

The Massachusetts Appeals Court affirmed the lower court’s ruling. On appeal, the plaintiff pursued only her claims for breach of contract, promissory estoppel, and intentional infliction of emotional distress claims, voluntarily abandoning the other aspects of her case. In asking the appellate court to reverse the lower tribunal’s summary judgment order in favor of the defendant, the plaintiff argued that a jury could have found that the defendant breached its promise to pay for her care by implanting a standard battery, rather than a rechargeable, during her follow-up care; by refusing to pay for her care at a different hospital; and/or by failing to ensure independent ethical oversight of her treatment. She also argued that her claims did not sound in medical malpractice insomuch as her treatment was experimental in nature and because the defendant’s decision to extend her free medical care was motivated by its own financial incentives.

The reviewing court disagreed with the plaintiff’s contentions on appeal, holding that her claims should have taken the form of a complaint for medical malpractice rather than a breach of contract claim. According to the court, when a trial judge was faced with a claim against a health care provider, he or she should look to the substance of the plaintiff’s allegations rather than the label that the plaintiff chooses to place on his or her claim. Here, the gravamen of the plaintiff’s complaint concerned the medical judgment exercised by the defendant; therefore, the plaintiff should have pursued a claim for medical negligence rather than breach of contract.

Have Questions About a Medical Malpractice Claim?

If you need to talk to an experienced medical malpractice lawyer about a possible case, please call the Law Offices of John C. Manoog III at 888-262-6664. Our offices also handle other types of personal injury and wrongful death cases in and around the Cape Cod region.

One such situation arises when the person who injured the plaintiff was an employee of the federal government. Generally speaking, the government is immune from lawsuits, but there are special exceptions in these types of cases.

Of course, the government has teams of attorneys whose job is to make sure that only qualifying cases are allowed to proceed. Just like other defendants, the government has a right to defend itself in court, even at the pre-trial stage with regard to jurisdictional issues.

Facts of the Case

In a recent federal district court case, the plaintiff was a woman who filed suit against the federal government, a registered nurse, and a medical center, seeking to assert a claim for medical malpractice. According to the plaintiff’s complaint, a non-party doctor employed by the government negligently left a sponge inside the plaintiff’s body following a cesarean section in 2011. The plaintiff maintained that the United States District Court for the District of Massachusetts had federal question jurisdiction over her claims, which she asserted fell under the Federal Tort Claims Act (FTCA) insomuch as the allegedly negligent physician was employed by the government during the relevant time.

The government disagreed with this contention, arguing that the doctor was not covered by the FTCA at the time of the plaintiff’s surgery and that, therefore, the government was not a proper substitute party to the plaintiff’s lawsuit. The government further argued that, under the circumstances, its sovereign immunity was not waived and that the plaintiff’s complaint should be dismissed for lack of subject matter jurisdiction.

Holding of the Court

The federal district court sided with the government, granting its motion to dismiss the plaintiff’s case against it for lack of subject matter jurisdiction. The court began by pointing out that the federal government is immune from suit except in situations in which it has consented to be sued. Under the FTCA, there is a limited waiver of the government’s sovereign immunity; the FTCA allows suit in situations in which a negligent act or omission by one of its employees results in personal injury, death, or loss of property. Under the Federally Supported Health Center Assistance Act (FSHCAA), the government’s waiver of its sovereign immunity was extended to certain federal contractors, including some doctors.

Although the plaintiff argued that the doctor who allegedly caused her injuries was covered under the FSHCAA, the court found that the factual record did not support such a finding. This was because the doctor had not entered into a written physician services agreement with the defendant hospital until after the event complained of by the plaintiff. Although the parties to the agreement may have contemplated it as having retroactive effect, the court found that the contracting parties could not retroactively have created a relationship that would have resulted in FTCA coverage of the situation at hand.

Seek Legal Counsel From a Cape Cod Attorney

The birth of a child should be a happy and joyous event. Unfortunately, the negligence of an obstetrician-gynecologist or other physician can cause serious injury or wrongful death to the mother and/or the infant. If you believe that you or a loved one has been injured during childbirth, the experienced ob-gyn malpractice attorneys at the Law Offices of John C. Manoog III will be glad to advise you about your case. Call us at 888-262-6664 to schedule a free consultation.

Then, there is the emotional difficulty of accepting that someone you trusted to help you was actually the person or entity that caused the harm. The idea of confronting a careless medical professional in a court of law can be daunting, and, truth told, can even dissuade some would-be litigants from seeking compensation for what has happened to them.

However, this only serves to give the negligent provider a “free pass” to continue such conduct in the future, possibly leading to additional patient harm or even death. If you find yourself as the victim of medical malpractice, it is important to consult a Cape Cod medical malpractice attorney who can explain your legal rights, the process of filing a claim, and the procedure necessary in order to seek fair compensation for your injuries.

Facts of the Case

The plaintiffs in a recently decided medical malpractice case were a minor child and her mother, who sought to recover for damages they alleged were caused by the medical malpractice and other wrongs of the defendant medical providers. At the time at issue, the child was 14 years old. In their complaint, the child stated claims for medical malpractice and intentional infliction of emotional distress; the mother asserted claims for negligence, intentional interference with custodial relations, and a derivative claim for loss of consortium. Only the child’s negligence claim and the mother’s loss of consortium claim were submitted to the jury, the other claims having been dismissed on summary judgment. The jury returned a defense verdict, and the mother appealed (the child did not seek appellate review).

The Decision Made by the Appeals Court

On appeal, the mother challenged both the dismissal of some of her claims on summary judgment and the jury’s verdict in favor of the defendants. The gravamen of her argument was that the defendants had breached duties “owed directly to her” in connection with their treatment of the minor child. In support of this argument, the mother maintained that the applicable standard of care for the psychiatric care rendered to the child included a duty to provide “family-driven treatment” and the facilitation of adequate contact between the mother and child. In ruling in the defendants’ favor at the summary judgment stage of the litigation, the trial court had ruled that the defendants did not owe any such duties to the plaintiff.

Although the appellate court agreed with the mother that the medical professionals did have certain obligations to a patient’s parent, including the obligation to confer regarding treatment and to obtain informed consent, the court rejected the mother’s contention that she was owed all of the duties that she had alleged in her complaint. The court began by acknowledging that, given the child’s age, the defendants owed most of their professional duties to her rather than to the mother. While the defendants did owe a duty to obtain informed consent regarding the child’s treatment, they were under no obligation to treat the mother, facilitate a relationship between the mother and the child, or provide the mother with reasonable aftercare. Accordingly, the reviewing tribunal affirmed the lower court’s granting of summary judgment to the defendants on the mother’s direct negligence claim.

With regard to the mother’s derivative claim for loss of consortium, the court found no reason to disturb the jury’s verdict. Given the jury’s finding in favor of the defendants on the child’s medical negligence claim, the mother’s derivative claim necessarily failed as well.

Talk to a Medical Malpractice Attorney

When a Cape Cod physician, psychiatrist, or hospital fails to properly treat a patient’s condition and, thereby, causes injury to the patient, the medical provider(s) can be held liable in a court of law. Proving negligence against a medical professional requires much work, however, including researching and hiring reliable expert witnesses to review the patient’s medical file and testify, should the matter proceed to trial. If you suspect that your hospital or health care practitioner has made a mistake that has caused you injury (or resulted in death to a loved one), call the Law Offices of John C. Manoog III at 888-262-6664 for a free case review.

If the tribunal answers the question in the affirmative, the case proceeds to the next phase of litigation in the same manner that a non-medical tort case would. If the tribunal does not find that the plaintiff has presented substantial evidence of liability, however, the case is not necessarily over.

At that point, the plaintiff has the option of posting a bond to cover certain defense costs if he or she does not prevail in the litigation. The court has some flexibility as to the amount of the bond, and the parties may argue that it be adjusted upward or downward from the “usual” amount of $6000.

Facts of the Case

In a recent unreported case, the plaintiff was a woman who filed suit against the defendants, a medical center and some of its “employees or agents,” in 2016. In her suit, the plaintiff asserted that she received health care services from the defendants in September 2013 and that the defendants were negligent in such care. The medical center answered the plaintiff’s complaint by requesting that a medical malpractice tribunal be convened. In 2018, the trial court ordered that a tribunal hearing be held in mid-May 2018; the order also contained a provision that the plaintiff’s offer of proof was due by the end of April 2018.

The plaintiff missed the offer of proof deadline and, five days before the tribunal hearing was set, filed an “emergency motion to continue” the tribunal on the basis that plaintiff’s attorney could not appear at the scheduled time due to medical issues. Ultimately, the hearing was reset, and the plaintiff was given additional opportunities to file her offer of proof. The plaintiff did not file an offer of proof, however, nor did she notify the court that she did not wish for a tribunal hearing to be had. She did, however, request that she be allowed to post a lower bond due to her indigence. The trial court granted the medical center’s motion to dismiss the plaintiff’s complaint, and the plaintiff appealed.

Decision of the Court

The Massachusetts Appeals Court affirmed the lower court’s order dismissing the plaintiff’s case against the medical center. Although the plaintiff argued that she should have been allowed to post a bond and that the reason that she did not do so was that her motion for a reduction in the amount of the bond was not ruled on and hence she was uncertain of how much to post. The appeals court rejected this argument, finding no error in the trial court’s decision to dismiss the plaintiff’s case and noting that a trial judge has discretion to dismiss a case when a plaintiff fails to prosecute his or her case or does not comply with the court’s order(s). Although an appellate tribunal can reverse the dismissal of a case on such grounds, the reviewing court found no reason to do so here because, despite multiple opportunities to prosecute her case, the plaintiff did not do so. Rather, she missed three offer of proof deadlines, failed to post a bond by the appropriate date, and did not appear at the tribunal hearing.

To Schedule a Consultation with a Cape Cod Malpractice Lawyer

If you have reason to believe that you or a family member has been hurt by the negligence of a doctor, nurse, hospital, or other medical provider, you should consult an attorney as soon as possible. These cases take a considerable amount of preparation, and a delay in seeking legal advice can be very detrimental to your case. To schedule a free consultation with an experienced Cape Cod medical malpractice attorney, call the Law Offices of John C. Manoog III, today at 888-262-6664 or contact us through this website. We are available for consultation during COVID-19 and will be happy to work with you regarding alternative methods for the intake of information required for your case, if necessary.

However, if a particular patient could have been saved through the exercise of reasonable medical care but, instead, dies because the treating physician’s care fell below the standard of competency for doctors who regularly perform such procedures, a Cape Cod medical malpractice lawsuit may be possible. An attorney who practices in this area will need to review the facts of your loved one’s particular case in order to determine whether there is a reasonable chance for success on the merits before going forward with the case.

Facts of the Case

In a recent case, the plaintiff was the surviving spouse and personal representative of a woman who died after undergoing surgery for treatment of a hiatal hernia in her diaphragm. The plaintiff brought a medical malpractice wrongful death lawsuit against the defendants, a doctor, a nurse, and the professional corporation for whom they worked, alleging that defendants’ treatment of the decedent fell below the standard of care for an average qualified surgeon and nurse and that this breach of care was a substantial factor in the decedent’s death. The defendants answered that the decedent died as a result of longstanding damage to her heart caused by her hiatal hernia rather than from any alleged negligence committed by them.

The case was tried to a jury, which found in favor of the plaintiff. After the trial court entered judgment upon the jury’s verdict, the defendants filed an appeal, arguing that there was insufficient evidence to support the jury’s finding that the doctor’s actions amounted to gross negligence, for which the jury awarded $2.5 million to the plaintiff.

Decision by the Court

The Massachusetts Appeals Court affirmed the lower court’s judgment. The court began its analysis of the defendants’ arguments on appeal by refusing to address their claim that the trial court judge had committed reversible error in instructing the jury on the issue of gross negligence; in the reviewing court’s opinion, the defendants had waived any argument about the instructions by telling the trial court judge that the instruction was “fine” when specifically asked about it during the trial.

The court of appeals went on to find that, contrary to the defendants’ argument, there was sufficient evidence for the jury to have concluded that the doctor’s decision to use a “tacker” in close proximity to the decedent’s pericardium incurred an obvious risk: that failure to use reasonable care could be fatal. Given the testimony of the plaintiff’s expert witness and the doctor’s admission that he did not measure the thickness of the decedent’s diaphragm crura at the time of the surgery (choosing to merely estimate it instead), the court found that the jury’s gross negligence verdict was reasonably justified.

Speak to a Cape Cod Wrongful Death Lawyer

Losing a loved one due to the negligence of a medical professional in whom a family member had placed his or her trust and confidence can be heartbreaking. It can also leave a family with many medical expenses and other financial loss associated with the loved one’s passing. If you need to talk to an established Cape Cod medical malpractice attorney about a possible medical malpractice wrongful death case, call the Law Offices of John C. Manoog III, at 888-262-6664 and schedule an appointment today.

In addition to negligence-based malpractice allegations, some plaintiffs’ malpractices cases may involve other types of civil wrongs, such as battery or intentional infliction of emotional distress. It is possible that the plaintiff in such a case might be successful on some, but not all, of his or her claims. Ultimately, it is up to the trial court judge and the jury (if the case gets that far) to determine these issues.

Facts of the Case

In a recent case, the plaintiffs included the administratrix of a deceased cancer patient and a relative of the patient. According to the plaintiff’s medical malpractice complaint, the defendant medical providers had committed several acts of medical malpractice upon the deceased patient prior to her death. The plaintiffs sought compensation for these instances of medical negligence as well as for battery and intentional infliction of emotional distress.

The defendants filed a motion for summary judgment as to all allegations in the plaintiffs’ complaint. The plaintiffs sought summary judgment as to the battery charge and the intentional infliction of emotional distress charge. The trial court granted summary judgment to the defendants, and the plaintiffs appealed.

The Disposition on Appeal

The Massachusetts Appeals Court reversed the lower court’s ruling in part and sustained it in part. The reviewing court began its analysis by exploring whether there was a viable cause of action for battery, in the medical context, based on the patient’s alleged withdrawal of consent concerning the taking of an x-ray while she was suffering from terminal cancer. After concluding that there was, the court noted that there was a factual issue as to whether the patient did, in fact, withdraw her consent during the x-ray exam and then ruled that summary judgment on the plaintiffs’ battery claim was inappropriate.

The court went on the find that these same facts, if accepted by the jury, could support the plaintiffs’ claims for intentional infliction of emotional distress, violation of Massachusetts General Laws ch. 111, § 70E, and breach of warranty. Thus, the lower court’s grant of summary judgment on these issues was likewise reversed. As to the remaining aspects of the plaintiffs’ complaint, the court of appeals agreed with the lower tribunal that summary judgment was proper.

Need to Ask a Massachusetts Malpractice Attorney a Question?

Sometimes an act of medical negligence is obvious (a doctor amputating the wrong limb, for example), but, in most cases, the issue of whether or not a mistake was made is a subject of much contention. If you believe that you may have been the victim of malpractice, you need to talk to an attorney who is well-connected to qualified medical experts who can review your medical records and determine whether a mistake was made. To schedule an appointment with an experienced Cape Cod medical malpractice attorney, call The Law Offices of John C. Manoog III, at 888-262-6664. It is important that you not delay in seeking legal advice because there are strict deadlines for filing a medical malpractice claim in Massachusetts.

Another important question – sometimes overlooked by those who are not familiar with the civil justice system – is, “How long do I have to file a Cape Cod medical malpractice lawsuit?” Generally speaking, the answer to this question is “three years.” However, calculating the exact date that a claim becomes time-barred can sometimes be difficult. This is because determining the date that the claim begins to run (and the three-year clock begins to tick) is not always simple.

Facts of the Case

In a recent (unreported) case, the plaintiff was a man who claimed that he suffered an injury to his urethra due to a nurse’s negligent catheterization of him when he was a patient at the defendant hospital in October 2009. The plaintiff was reportedly told that he might urinate blood for a short while but that the bleeding would stop soon. The plaintiff not only had bloody discharge in his urine, but also he experienced painful urination that lasted for several years. However, he did not return to the defendant hospital for further medical treatment until June 2012. According to the plaintiff, he suffered from post-traumatic stress disorder and a phobia that made him fearful of seeking medical attention.

When he presented to the defendant hospital for further treatment, his belief was that his medical issues were caused by a sexually transmitted disease; however, all of his STD tests came back negative. Finally, in September 2015, the plaintiff consulted with a different medical provider after concluding that his continued medical problems were caused by the 2009 catheterization procedure. He filed his medical malpractice lawsuit against the defendant in October 2016, some seven years after the allegedly negligent catheterization procedure and more than four years after he first sought medical treatment for his injuries. The defendant moved for dismissal of the plaintiff’s claim on the ground that it was barred by the three-year statute of limitations for such actions set forth by Massachusetts law. The trial court granted the motion, and the plaintiff appealed.

The Court’s Decision on Appeal

Reviewing the lower court’s dismissal of the plaintiff’s claim de novo, the Massachusetts Court of Appeals affirmed. A claim for medical negligence accrues (and the statute of limitations begins to run) when the plaintiff learns, or reasonably should learn, that he or she has been harmed by a particular medical provider. Based on the plaintiff’s complaint, the court found that the defendant was on notice of his claim soon after he was discharged from the hospital. At the latest, his claim accrued in June 2012. Since he did not file suit until October 2016, the court of appeals agreed with the lower tribunal that the plaintiff’s lawsuit was barred by the three-year statute of limitations.

Hire an Experienced Medical Malpractice Attorney

If you even suspect that you or a family member has been hurt by a doctor, nurse, or hospital, you should talk to a lawyer as soon as possible. To schedule a free consultation with an experienced Massachusetts medical negligence lawyer, call the Law Offices of John C. Manoog, III, today at 888-262-6664.

Because a lot can hinge on the testimony of the parties’ respective witnesses, it is not unusual for evidentiary and procedural issues to arise during this phase of the trial.

It is up to the trial court judge to resolve these issues, subject to review by the appellate court if either party seeks a review of the trial court’s decision(s) in this regard.

Facts of the Case

In a recent Massachusetts medical malpractice case, the plaintiff was the personal representative of the estate of a patient who had been treated by the defendants (a nursing home and its staff) after having had surgery. The plaintiff alleged that, as a result of the defendant’s negligent postoperative treatment, her decedent passed away.

After a five-day jury trial, a verdict was entered in favor of the defendants. The plaintiff appealed, asserting that the trial court judge had committed several reversible errors during the trial.

Decision of the Court

The Commonwealth of Massachusetts Appeals Court affirmed the trial court’s entry of judgment upon the jury’s verdict in favor of the defendants. The plaintiff argued that the trial court acted improperly with respect to a juror’s comment during the testimony of a certain expert witness, but the appellate court disagreed. The interchange at issue occurred when, in response to an attorney asking the expert witness to locate a certain page of the decedent’s medical records, the juror stated the page number. The juror was admonished to remain silent but was not interviewed, and the trial continued.

During summation, the plaintiff’s attorney made a reference to the incident and asked that the juror be excluded from deliberations because “his outburst indicated bias.” The trial court judge denied the plaintiff’s request. On appeal, the plaintiff urged the appellate court to grant her a new trial because the lower court judge should have questioned the juror about his potential bias and given a curative instruction.

According to the court of appeals, the plaintiff waived these arguments by not having specified the grounds for her objection after the juror interjected and by not requesting a curative instruction or voir dire during the trial. The appellate court also noted that the plaintiff’s attorney had used the juror’s interjection to her favor during closing arguments and that she had failed to offer any evidence of the juror’s alleged bias on appeal. According to the appellate court, the juror’s comment did not reflect inherent bias but, rather, may have simply resulted from impatience or a desire to move the trial along.

Get Legal Advice About a Possible Claim

At the Cape Cod area Law Offices of John C. Manoog III, we handle many types of personal injury and wrongful death cases, including medical malpractice claims. For a free consultation to learn more about the process of asserting your legal rights following an injury or a loved one’s death, call us at 888-262-6664. Both wrongful death and personal injury claims are governed by a strict statute of limitations, so please do not delay in seeking legal advice about your situation.