Malpractice Claim for a Nerve Block That Was Never Given

Attorney Answer

You may have a real claim — but in Massachusetts a malpractice case has to clear a screening tribunal before it goes anywhere, and what clears it is a specific expert opinion, obtained early.

G.L. c. 260, § 4 requires actions for malpractice, error, or mistake against a physician or other health care provider to be commenced within three years after the cause of action accrues, subject to a statute of repose barring actions brought more than seven years after the act or omission, with a limited exception for a foreign object left in the body.

Before the case can proceed, G.L. c. 231, § 60B requires it to be heard by a tribunal made up of a judge, a physician, and an attorney. That tribunal decides whether your offer of proof, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. If it finds the offer insufficient, you must post a bond — set by statute at $6,000, which the court can reduce on a showing of indigency — to continue, and if the bond is not posted the case is dismissed. This is Massachusetts's version of a certificate-of-merit requirement, and in practice it means an expert has to review your records long before any trial date.

Thou v. Russo, 86 Mass. App. Ct. 514 (2014), is directly on point and helpful. It was an anesthesia case. The Appeals Court held that the offer of proof is evaluated with the evidence taken in the light most favorable to the plaintiff, asking only whether the physician's conduct is shown to have departed from good medical practice and to have caused damage. Because the plaintiff submitted an expert opinion identifying specific anesthetic doses, specific departures from the standard of care, and a causal link to the injury, the tribunal had erred in finding the proof insufficient; the dismissal was vacated and no bond was required. The lesson for you is precision — a general expert opinion that "the care was substandard" is what fails at this stage.

The psychological injury is part of the claim, not a footnote to it. Trauma severe enough to keep you out of medical care, and an underlying condition that has worsened as a result, are compensable harm — but only to the extent they are documented in a medical record that connects them to what happened in that operating room.

One separate angle worth checking: if you were billed for a nerve block that was never administered, that is a different issue from the negligence. Under Darviris v. Petros, 442 Mass. 274 (2004), negligent medical care by itself does not violate G.L. c. 93A, the consumer protection statute — mere negligence is not unfair or deceptive. But the SJC was careful to say that providers are not categorically outside c. 93A: the entrepreneurial and business aspects of providing medical services, such as advertising and billing, remain within its reach. So pull the itemized bill.

What you can do

1. Request your complete records from the surgery center in writing now: the anesthesia record, the operative report, medication administration records, nursing notes, and the pre-operative consent and anesthesia plan. The anesthesia record is the central document. 2. Request the itemized bill and your insurer's explanation of benefits, and check whether the nerve block was billed. 3. Write out, in detail and with dates, what you felt during the procedure, what you said at the time, and who was in the room. 4. Get treatment for the psychological effects and tell that clinician the cause. That record is what ties the trauma to the surgery. 5. Document the worsening of your underlying condition and the appointments you have avoided. 6. Bring all of it to a Massachusetts medical malpractice lawyer soon. Securing a qualified expert opinion for the § 60B tribunal takes months, not weeks. 7. Do not sign a release from the surgery center or its insurer, and do not accept a bill adjustment in exchange for one.