A plaintiff injured by medical malpractice in Massachusetts must file an action within three years from the date the injury was discovered or be barred from recovery. Under Massachusetts contributory/comparative theory, a plaintiff may not recover if his or her fault resulting in the injury is greater than the total amount of negligence attributable to the defendant(s). If not greater, the recovery will be reduced proportionate to the plaintiff's fault.
Statutes of Limitations/Repose
Chapter 231: Section 60D. Claim by minor against provider of health care; limitations
Notwithstanding the provisions of section 7 of Chapter 260, any claim by a minor against a health care provider stemming from health care rendered, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under six years shall have until his ninth birthday to commence an action, but in no event shall any action be commenced more than seven years after occurrence of the act or omission except where the action is based upon the leaving of a foreign object in the body.
Chapter 260: Section 4. Certain tort or contract actions for malpractice, error or mistake
Actions for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria shall be commenced within three years after the cause of action accrues, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission except where the action is based upon the leaving of a foreign object in the body.
Damages
Chapter 231: Section 60H. Limitation of damages for pain and suffering
In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services, other than actions brought under section 2 of chapter 229, against a provider of health care, the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than $500,000 for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.
Comparative/Contributory Negligence
Chapter 231: Section 85. Comparative negligence; limited effect of contributory negligence as defense
Contributory negligence will not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or injury if the plaintiff's negligence is not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought; however, any damages will be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made. In determining by what amount the plaintiff’s damages shall be diminished in such a case, the negligence of each plaintiff shall be compared to the total negligence of all persons against whom recovery is sought. The combined total of the plaintiff’s negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.
Talk to a Medical Malpractice Attorney
If you suffered a medical malpractice injury in Massachusetts, you may have a cause of action to recover damages. Damages for non-economic losses such pain and suffering are capped at $500,000 unless the jury determines that this is not just compensation. Talk with an attorney to discuss the details of your case.
