In November 2012, three years ago this month, Massachusetts passed the medical malpractice notice statute, M. G. L. c. 231, § 60L. On its face, the statute was intended to reduce the number of medical malpractice actions brought by encouraging openness by health care providers and early resolution between plaintiffs and defendants of substantiated claims. However, in our experience, the notice statute has not resulted in the transparency or openness by health care providers in responding to these claims expected by the statute and has further demonstrated the need for plaintiffs to retain experienced attorneys in this specialty of medical malpractice litigation.

“The medical malpractice notice statute has created additional requirements for plaintiffs in the practice of medical malpractice in Massachusetts, including the disclosure of significant information and expert opinions before filing a lawsuit. This statute further demonstrates the need to have potential medical malpractice cases evaluated and pursued by attorneys experienced in this complex area of law as early as possible.”

Richard Paterniti, Partner

The Medical Malpractice Notice Statute

The statute contemplates detailed disclosures from both parties to promote a more open discussion regarding the claim in order to resolve cases before litigation or even prevent such claims from being filed. The medical malpractice notice statute requires that plaintiffs provide notice of a potential claim against a healthcare provider at least 182 days before filing a lawsuit, unless the statute of limitations is less than six months away. The statute also requires that the plaintiff provide:

  1. the factual basis for the claim;
  2. the applicable standard of care alleged;
  3. the manner in which the standard of care was breached by the health care provider;
  4. the alleged action that should have been taken to achieve compliance with the standard of care;
  5. the manner in which the breach of the standard was the proximate cause of the injury suffered;
  6. the names of all health care providers against whom the plaintiff intends to bring the claim or lawsuit; and
  7. that the plaintiff produce all relevant medical records.

The defendant is required to respond to the notice within 150 days with a statement similar to the plaintiff’s which includes:

  1. the factual basis of the defense;
  2. the applicable standard of care;
  3. the manner with which this standard of care was or was not complied; and
  4. the manner in which the health care provider’s conduct was or was not the proximate cause of the alleged injury.

Lessons Learned for Plaintiffs

As a firm that focuses on complex medical malpractice, we have navigated plaintiff cases under this statute for the last three years. What we have learned during this time has been critical to helping our clients successfully pursue their claims expeditiously:

  • Do not delay: The notice statute requires the disclosure of expert opinions. Therefore, expert physicians or nurses must be consulted immediately in order to comply with the disclosures in this notice. Our firm works closely with experts in all fields of medicine which allows us to review claims and provide the required disclosures more quickly and accurately.
  • Defendants are not always forthcoming: The expected and hoped for transparency by defendants during this process has rarely occurred. In most cases, despite the statute, defendants provide a very limited description of the relevant facts along with a limited disclosure of the standard of care and the proximate cause of the plaintiff’s injuries. As such, we have learned that plaintiffs have to be careful to provide sufficient information to meet their burden without providing more information than required which may adversely impact the handling of the case going forward.
  • Have the ability and experience to work with opposing attorneys and insurance carriers in deciding how much information to provide: Making decisions as to whether to provide additional information to defendants is important in the notice process. At times, providing additional information requested by defense attorneys or malpractice insurers can be helpful in allowing them to evaluate and consider an early resolution of a matter. However, some defense attorneys manipulate the process and seek more information to provide a response to the notice without an intention of trying to resolve the matter. For instance, defense attorneys often request expert affidavits from plaintiff’s counsel at this stage to fully evaluate the claim. While expert affidavits are not required during the notice process, providing such an affidavit may be helpful in resolving a case. Experienced attorneys are better able to determine when producing such affidavits will lead to productive settlement discussions regarding the claim.
  • Be able to aggressively move the case in light of the statute: While the notice statute adds an additional time requirement for pursuing medical malpractice cases in Massachusetts, experienced medical malpractice attorneys are able to use the statute and the earlier disclosures required by it to argue for earlier trial dates once a lawsuit is filed. We have been successful in moving the courts for these earlier trial dates, which are otherwise set for up to three years or more after a lawsuit is filed, by arguing that the defendants have had the added time provided under the notice statute to review, evaluate and prepare their cases.

Because medical malpractice claims are complex by their very nature, they are best handled by attorneys who understand both the legal and medical complexities involved in successfully pursing such claims. If you, or your client, is considering a medical malpractice claim and would like to discuss your case, please contact attorney Richard Paterniti at (617) 737-3100 or rpaterniti@joneskell.com.

Related Attorney  Richard W. Paterniti

Richard W. Paterniti

Partner

Richard W. Paterniti is a partner at Jones Kelleher. His practice involves the litigation and trial of personal injury cases with a focus on medical malpractice, premises liability, motor vehicle negligence and product liability cases.

Contact