Nursing Home Negligence
Know Your Rights to Get the Best Recovery Possible
When we or our loved ones enter a nursing home, we are trusting their care to staffed professionals. Unfortunately, mistakes in nursing homes can result in tragic injuries or even wrongful death.
Damages from nursing home negligence can include payment of medical expenses incurred, lost wages, pain and suffering, and wrongful death damages.
Nursing home negligence is a type of medical malpractice claim. Like in all medical malpractice claims, the injured person must prove all of the following to obtain a recovery:
A doctor-patient relationship existed between the injured person and the medical professional;
The medical professional provided treatment to the injured person that was below the standard of care;
The negligent treatment was the cause of the person's injury; and
The injury resulted in damages.
In practice, nursing home negligence claims in Massachusetts are complicated and are governed by an assortment of rules and statutes.
As an initial matter, under G.L. c. 260, s. 4 the statute of limitations for nursing home negligence claims in Massachusetts is typically three years from the date of the injury. This means that a person injured by nursing home negligence must typically file a lawsuit against the responsible medical provider within three years of the date of injury.
The statute of limitations can be extended by what is called the "discovery rule." The discovery rule, adopted by the Massachusetts Supreme Judicial Court in Franklin v. Albert, states that the three year statute of limitations does not begin to run until the injured patient learns, or reasonably should have learned, that they were harmed as a result of the medical professional's conduct.
However, it is critical to note that G.L. c. 260, s. 4 sets a hard line stating that no medical malpractice claims can be brought more than seven years from the date of the injury unless it relates to discovery of a foreign object left within the body. We call these hard lines "statutes of repose."
Once a patient learns they may have been injured by a medical professional, it is critical to speak to a lawyer immediately, as one of the next statues to apply is G.L. c. 231, s. 60L. This law lays out specific rules that must be followed when presenting a medical malpractice claim to a medical professional. This "60L Claim Letter" is required to be sent six months before the patient is even allowed to file suit. This requirement is only waived where the statute of limitations would expire by the end of that six month waiting period.
Allegedly, the 60L Claim Letter is supposed to give nursing homes and their insurance companies a chance to investigate the injured person's claims, offer a chance to apologize, and then attempt mediation to resolve the injured patient's claims. In practice, nursing home insurance companies use 60L as an additional hurdle for injured patients and a delaying tactic.
Once the 60L waiting period has passed, the injured patient can finally file suit. However, they almost always need to have an expert hired and report prepared at the same time. This is because G.L. c. 231, s. 60B and Mass. R. Civ. P. 73(1) requires injured patients file what is called an "Offer of Proof" with the Court within 15 days of the defendant nursing home filing their answer to the injured patient's complaint. This Offer of Proof must establish to the Court that the injured patient has a "legitimate question of liability appropriate for judicial inquiry."
A Tribunal can then be called in which a judge, attorney, and medical professional review the Offer of Proof and decide whether the injured patient can proceed with their lawsuit. If the Tribunal decides the injured patient has failed to raise a "legitimate question of liability appropriate for judicial inquiry," they will be forced to put up a bond to proceed with their lawsuit, adding to the injured patient's out of pocket expenses.
Assuming the injured patient makes it over these many hurdles, they can then begin to conduct discovery in litigation to try to prove the elements necessary to succeed with their medical malpractice claim.
Massachusetts nursing home malpractice claims are incredibly complicated, and the best thing an injured person can do is call a lawyer. Insurance companies are stacked with professionals whose goal is to minimize the payments they need to make to you for your nursing home negligence claim. Speak to a professional today to make sure you also have an expert on your side. Hiring a lawyer to fight for you at no out-of-pocket cost is the smartest move you can make.
With over a decade of experience representing clients injured by nursing home negligence in Massachusetts, the professionals at the Law Offices of Samuel A. Segal know what it takes to get you the best recovery possible.
The time to file your claim is limited, so reach out to us today for your Free Consultation.
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