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legalgems, Lawyer
Category: Legal
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I had surgery on my neck at the Lowell general hospital in

Customer Question

Hello, I had surgery on my neck at the Lowell general hospital in December. The surgery went well, but the staff at the hospital injured my leg during recovery. I woke up the morning after the surgery with a large wound on my lower leg. I have filed a complaint and I am working with their patient advocate. I have asked for $400 for supplies and medicine for the treatment of the wound. It took 5 weeks to get an appointment at the Lowell Wound care center. The injury is very painful and still wakes me during the night. Dr. Spirito, my wound care specialist explained that the depth of the initial wound resulted with the nerves being exposed so they are painful.
The question I have is how much I should ask for pain and suffering. I do not believe a suit would be fruitful since proving who was responsible could be difficult. I also could not afford a lower to litigate for me. Please respond as soon as possible as Nichole Burns, patient advocate, is waiting for an amount to present to the Hospital.
Submitted: 6 months ago.
Category: Legal
Expert:  legalgems replied 6 months ago.

MA has a cap, pursuant to Ch 231, section 60H of the code, which limits medical malpractice damages to $500,000 unless:

Section 60H. In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services, other than actions brought under section two of chapter two hundred and twenty-nine, 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 five hundred thousand dollars 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. In any such action which is tried without a jury, the court shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the aforesaid findings are made specially by the court and stated separately in the judgment entered by the court. Except in those cases where the aforesaid findings are made, if two or more plaintiffs have received verdicts or findings of such damages in a total amount, for all plaintiffs claiming damages from a single occurrence, transaction, act of malpractice, or injury which exceeds five hundred thousand dollars, the amount of such damages recoverable by each plaintiff will be reduced to a percentage of five hundred thousand dollars proportionate to that plaintiff's share of the total amount of such damages for all plaintiffs. Such limit shall apply, except in those cases where the aforesaid findings are made, regardless of the number of persons liable jointly or severally for the said damages.

As you can see from the statute, there are numerous exceptions to the cap. Furthermore the court is authorized to award attorney fees and costs to the plaintiff.

Also, please be aware that an attorney can negotiate a very favorable settlement, by researching similar injuries in the jurisdiction, to see what other judgments have resulted in for plaintiffs.

Most attorneys will take these type of cases on a contingency fee basis, so no fees are paid until after the judgment is rendered (and again, the court may order the defendant to pay the fees).

Lastly, there is a legal concept Res Ipsa Loquitor:

This doctrine basically allows for recovery for negligence acts/omissions, when the defendant had exclusive control over the plaintiff.

Here are the elements:

  1. The injury is of the kind that does not ordinarily occur without negligence.
  2. The injury is caused by an agency or instrumentality within the exclusive control of the defendant.
  3. The injury-causing accident is not due to any voluntary action or contribution on the part of the plaintiff.
  4. Defendant’s non-negligent explanation does not completely explain plaintiff’s injury.

Since pain and suffering can constitute the majority of a settlement/judgment, I would encourage you to at least consult with a medical malpractice attorney to review the case and present a settlement offer to the defendant.

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