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Jan 2013

A healthcare cost control bill signed into law on August 6, 2012 alters the procedural landscape of Massachusetts medical malpractice law.  The new law, Chapter 224 of 2012 Acts, enacts M.G.L. c. 231, sec. 60L, which establishes that a person may not commence an action against a provider of health care unless the person has given the provider 182 days written notice of the claim.  The notice period may be shortened to 90 days where other providers involved in the claim were provided the 182-day notice.  The 182-day notice is not required if the claimant is unable to identify the provider as a potential party prior to filing suit against other providers to whom notice was given.  In addition, the notice requirement does not apply to malpractice actions filed within 6 months of the applicable statute of limitations or within 1 year of an applicable statute of repose.

The notice of intent to file suit must set forth the factual basis for the claim, including identification of the applicable standard of care, the manner in which such standard is claimed to have been breached by the provider, and the manner in which said breach is claimed to have proximately caused the alleged injury. 

No later than 56 days after providing such notice, the claimant must allow the health care provider access to all of the medical records related to the claim that are in the claimant’s control, and must provide releases for medical records related to the claim that are not in claimant’s control of which the claimant has knowledge.  

Within 150 days after receipt of such notice, a health care provider may provide a written response to the claimant or the claimant’s representative.  The claimant and provider may agree to extend the 150-day period.  The provider’s response must include the factual basis for any defense to the claim.  If no response is received by the claimant within the 150-day period, the claimant may commence a medical malpractice action against the provider and prejudgment interest will accrue from the date that the claimant’s notice was served.   The claimant may also commence the lawsuit if the health care provider informs the claimant that she has no intent to settle the claim within the 150-day notice period.

M.G.L. c. 231, 85K, the so-called charitable cap statute, was also amended to increase the statutory cap on damages for non-profit organizations that provide health care from $20,000 to $100,000, exclusive of interest and costs.

The intent of these changes is to foster settlement of malpractice claims without litigation.  Previously, a health care provider would often not be informed of the basis of a claim until shortly before the Medical Malpractice Tribunal, which, depending on the venue and medical specialty, may not take place for a year or more after the lawsuit is filed.  By providing health care providers early notice of the basis of claims, an opportunity to review the relevant medical records, and an opportunity to respond with the basis for any defense, both parties can better evaluate the claim and settlement potential prior to suit.  Similarly, increasing the cap on tort damages applicable to hospitals and other non-profit organizations that provide health care should facilitate settlement of claims valued within that range.  Section 60L also provides health care providers with the opportunity to seek dismissal of malpractice actions brought by Plaintiffs who fail to comply with the statute’s notice requirements. 

Section 60L became effective on November 4, 2012.  Note that as for medical malpractice claims that do go into suit, the current procedural rules are still in effect (including, e.g., the tribunal process,  certain limitations on non-economic damages and special handling of the collateral source rule).

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