A Terrible Idea, Poorly Executed
Posted on Tuesday, November 5th, 2013 at 2:49 pm
Just one year ago, a new notice requirement for medical malpractice plaintiffs went into effect in Massachusetts. Heralded by the Massachusetts Medical Society as “an extraordinary accomplishment” that would “encourage transparency and honesty, protect the rights of patients who have been harmed by avoidable events, improve patient safety, reduce litigation, and ultimately cut health care costs,” G.L. c.231 sec. 60L requires that an injured patient give a detailed notice of his claims to the potential defendants, and then wait several months before filing suit. Some lawyers joined the chorus, although I never could figure out why they expected this legislation to change years of well-established defense practices.
The laudable goal of the legislation was to encourage health care providers to deal with patients fairly and honestly, and to encourage early settlement of claims before either side incurs significant litigation expenses. My worst fears were realized: in practice, the statute serves to add one more road block, and six months of delay, to the already tortuous process of seeking compensation for injury or death resulting from medical malpractice. In the year since the notice requirement took effect, I have yet to see a health care provider respond to a notice of claim as contemplated by the statute–let alone offer an early settlement.
In response to the plaintiff’s detailed notice, which must identify the providers whose care is at issue, and describe the claimed negligence and the way in which it resulted in harm to the patient, the potential defendant is required to file a similarly detailed response–stating the factual basis for any denial of negligence and/or causation. Doesn’t happen. In fact, the most common response is a vague statement that the claim will be investigated, followed months later by a claim that the defendant and his insurer have not had enough time to investigate the claim (despite being provided with all relevant medical records at the time of the notice).
In conversations with claims representatives and defense lawyers, I have learned that my experience is far from unique. Six months is a relatively short time to investigate a major malpractice claim, particularly since there is no opportunity for the parties to speak to each other to learn what their respective positions are, or to obtain documents other than medical records. Defense lawyers, who bill hourly for their time, have no incentive to speed the process along. On both sides, lawyers and claims personnel are figuratively tearing their hair out, wondering who thought this was a good idea.
But the true impact falls squarely on injured patients and their families. The statute builds in a six-month delay, insuring that even the most meritorious cases will not be quickly resolved. Even in the common situation where discovery during a lawsuit reveals that additional health care providers should be added, a 90-day notice is required. If the health care providers were truly interested in the prompt resolution of claims, they’d waive the notice period and tell the patient to file suit immediately. But I won’t be holding my breath waiting for that to happen.