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Who Checks on Your Doctor?

doctor weighing optionsFor many patients, hospital affiliation is an important factor in choosing a doctor, particularly a surgeon.  Part of the decision involves the patient’s desire to be treated at a particular hospital–whether for reputation, geographical location, or other characteristic.  But also critical to many patients’ thinking is the fact that if a particular doctor practices at Hospital X, he/she “must be a good doctor.”

Hospitals are well aware of the marketing power of their brands, and spend large sums of money on advertising their services.  Billboards proclaim a hospital’s ranking, television and radio commercials promote special services or departments, and printed ads show contented new moms and dads bonding with their newborn baby in a homey setting.  But when something goes wrong, most hospitals rush to distance themselves from the involved physicians.

In fact, many Massachusetts physicians are not employed by the hospitals where they work.  The hospital grants the doctor staff privileges, which permit the doctor to admit patients and perform procedures.  But if the doctor is negligent, the hospital claims that he is not an employee, and that the hospital is not responsible for the negligence.  So much for all those glossy ads.

A recent Massachusetts trial court decision takes a step toward helping patients hold hospitals accountable for the quality of the doctors who work within their walls.  In Rabelo v. Nasif, Worcester Superior Court Judge John Ferrara held that Massachusetts would follow a well-established body of law from other states, holding hospitals responsible for “negligent credentialing” when they grant privileges to bad doctors, or permit doctors with a long history of problems to remain on their staffs.

According to court papers, the orthopedic physician defendant had an extensive history of malpractice payments and disciplinary actions in the several years preceding his treatment of the plaintiff.  Despite this history, the hospital continued to grant him admitting and surgical privileges.  Yet the hospital claimed that it could not be held responsible for the doctor’s actions because he was not an employee, but merely a physician on staff.  The court disagreed, noting that patients would reasonably expect that a physician credentialed by a hospital was competent and would provide proper care.  Aiding the plaintiff’s cause was the fact that he did not choose the physician to treat him, but rather was assigned this doctor after being treated in the hospital’s emergency department.

This cause of action for negligent credentialing has been available in other states for many years.  However, it has been of limited use in Massachusetts because most hospitals are incorporated as non-profit corporations, and thus, until recently, had their liability capped at $20,000.  That cap was recently raised to $100,000, which will still discourage many claims against hospitals.  However, as the medical landscape changes and more hospitals are bought by for-profit companies, the tort of negligent credentialing may be increasingly useful for patients looking to hold hospitals accountable for the care they promote.
 


Investigating Your Doctor’s Malpractice History

Many of our clients express concerns about the lack of readily available information about the malpractice history of their doctors.  Some are disturbed to hear that their physician had previously paid one or more malpractice claims, and surprised to learn that this information was available to them in the Physician Profiles section of the Board of Registration in Medicine website.  Others want to make sure that a record of the settlement or jury verdict they have received is publicly available for the benefit of other prospective patients.

Massachusetts insurers must report every malpractice settlement or verdict to the state medical board, which is public, and to a national data base, which is available only to health care professionals.  In 1997, Massachusetts became the first state to post these malpractice payments on the internet.  The available information was limited to ten years from the date of the payment, and to a notation that the amount of the payment was “below average,” “average” or “above average” for the specialty, along with the percentage of doctors in that specialty who had made malpractice payments.  Still, at that time, it was viewed as a promising first step in providing information to health care consumers.

However, as a recent article in the Boston Globe explains, Massachusetts has failed to keep pace with other states in providing information to health care consumers.  The Massachusetts Board of Registration regularly removes records for physicians who are no longer licensed in Massachusetts, leaving those doctors free to move to other states and leave their Massachusetts history behind.

Even information supposedly required to be posted is often delayed or missing.  Insurers are sometimes slow to report settlement payments, often doing so only quarterly or even less frequently.  And once the information reaches the Board, there is usually an additional delay before the payment data is actually posted to the website.  And in most cases involving multiple health care providers, the insurer decides how the settlement will be allocated among the various defendants.  In these cases, some physicians who were deeply involved in a malpractice case may escape a public record if the insurer chooses to charge the payment to another provider.

By contrast, Florida makes available an extensive searchable database that includes all insurance payments for doctors and hospitals (and lawyers!), as well as a license verification that includes disciplinary information and criminal convictions.

Other New England states also lag behind.  For example, New Hampshire allows patients to look up physicians by name, and also to read a summary of disciplinary actions.  Rhode Island consumers also have access to a searchable list of physician disciplinary histories dating back to the 1980s.  But neither state publishes information about malpractice settlements and verdicts, unless the payment also results in disciplinary action–which is rare.

And all of the sites suffer from a common flaw: they do not provide information about pending lawsuits or disciplinary proceedings.  Since court cases and board prosecutions can take several years to resolve, that means that the most current information about a physician’s practice problems isn’t available, unless a consumer makes the effort to go to the courthouse or the board of registration office.  By the time the result is actually made available to the public, the medical care in question occurred many years earlier.  This time lag suffers from two problems: a physician may have improved his practices or gained further education and experience so that he is truly a better doctor–or other patients may have been harmed in the intervening years.  The first is unfair to physicians; the second is dangerous to the public.


Liz Mulvey to Teach Cross-Examination Techniques

Rules in MedMal book coverLiz Mulvey will be speaking at the American Association for Justice’s upcoming education seminar, Winning Medical Negligence Cases with Rules of the Road. The program, to be held at the Hotel Valley Ho in Scottsdale, Arizona, on March 8-9, 2013, features updated and expanded presentations from last year’s well-attended event in Las Vegas.

The Rules of the Road approach is based on the bestselling trial guide by Pat Malone and  Rick Friedman, Winning Medical Malpractice Cases with the Rules the   Road™ Technique. All participants will receive a copy of the book, plus actual trial transcripts demonstrating how to use Rules approach in the courtroom.  The panel of speakers will also brainstorm with attendees about their own cases.

Program chairman Pat Malone has assembled a panel of nationally respected trial lawyers and consultants who will address all aspects of successfully representing victims of medical negligence, including discovery, opening, direct and cross-examination, and closing argument, during the two-day seminar. The faculty will share their secrets to create the winning edge in these challenging cases using Rules of the Road and other proven methods.

The seminar has been expanded to include a half-day of all new presentations on such topics as representing children with birth injuries, combating the epidemic of falls in hospitals and nursing homes, unlocking institutional secrets through depositions of corporate spokesmen, and calling the defendant as witness in the plaintiff’s case.

Mulvey is a frequent lecturer on trial practice in Massachusetts and nationally.  Malone has asked her to share her techniques for cross-examining expert witnesses without the benefit of a pre-trial deposition.  Mulvey is an advocate of this approach, which she feels benefits the plaintiff by eliminating the chance for defense experts to rehearse and shape their testimony, and also helps to keep litigation costs under control.

Crowe & Mulvey is a long-time Leaders Forum supporter of the AAJ, an organization that seeks to preserve and protect the rights of injured victims against judicial and legislative attacks.
 


We’re Having a Meeting About You…

secrecyNo, you can’t come.  And no, we’ll never tell you what we say.  If we figure out why you or a family member suffered a catastrophic injury or even died, it will remain our little secret.  Ours, not yours, And there’s nothing you or anyone else can do to make us tell you.

That’s peer review.

Peer review is a process in which every hospital in the country engages when there is a bad or unexpected outcome.  The doctors involved in the patient’s care get together in a meeting, often joined by other doctors from the same medical or surgical department.  They review medical records, oral or written statements from the health care providers involved, and other sources of information available in the hospital.  Sometimes, they even get reports from outside consultants.  They discuss what happened, whether it could have been avoided, and how to prevent similar occurrences in the future.

Sounds like a great idea, doesn’t it?

Unfortunately, the people with the greatest interest in the outcome–the patient and his family–will never find out what happened in that meeting, or what conclusions were reached.  Never.  Not under any circumstances.  No way.  In fact, some hospitals have even fought to keep that information away from the Board of Registration in Medicine, the state agency that is charged with protecting the public by disciplining bad doctors.

The original rationale for peer review statutes was that doctors needed to be free to criticize other doctors in order to improve the quality of medical care, and that they would not speak freely if they knew that their comments might become known to others.  Translation: we’d much rather lie to patients than criticize another doctor in public.  (Does anyone see a problem with this?)  What they really mean is that they don’t want some patient’s lawyer coming along and figuring out what went wrong.  But what’s lost in the dust-up between the doctors and the lawyers is… the patient.

It’s bad enough that no other profession or industry or governmental body gets to hide behind the veil of secrecy that has been created for doctors in virtually every state in the country.  Imagine, if you will, if a product manufacturer who had received complaints of injuries and death from consumers, came out and said, “We had an internal meeting.  We figured out what went wrong, why people got sick and died.  But we’re not going to tell anyone what we found.”  That’s bad enough.  But to add insult to injury, so to speak, the rationale is that doctors won’t tell the truth if someone might find out what they said.

Late last year, Massachusetts enacted a “Disclosure and Apology” statute, which  is supposed to encourage health  care providers to tell patients when a mistake has been made.  It’s a great idea, but as long as doctors know that the truth can never be forced out of them, I think it’s unlikely to do much to dispel the culture of secrecy that surrounds the medical profession.


Examining the “Risk” of Malpractice

risk_factorA common defense lawyer’s explanation for a bad outcome is that what happened is “a risk of the procedure.”  But what does that really mean?  And what does it mean for a patient who suffers one of the known complications of a procedure or surgery?

As used by defense lawyers, “risk of the procedure” tries to convince a jury that the health care provider wasn’t negligent, that what happened was unvoidable, and happened despite appropriate actions by the provider.  But the explanation that a bad outcome was “a risk of the procedure” doesn’t answer the real question in a malpractice case, which is “Was the doctor negligent?”  Sometimes, there is a bad outcome even though the doctor did everything in a completely appropriate manner.  But sometimes, the bad outcome was the result of bad medical practice.  And that’s the definition of malpractice.

A good example of the difference comes from a case we handled recently.  A man had developed fluid around his heart and needed a procedure known as pericardiocentesis, where a needle is inserted into the space around the heart to drain out the fluid.  As you might imagine, any time a needle is in close proximity to the heart, there is a potential for injury,  So, one might say, injury to the heart is a known risk or complication of pericardiocentesis.

But if that injury occurs, it may or may not be due to negligence.  In our case, two important facts led us to conclude that the man’s death from injury to his heart was due to negligence, and was not  just an unavoidable complication.  First, although there are imaging techniques that are commonly used to allow the doctor to see the needle’s progress in real time, the doctor in our case chose not to use them.  He did the procedure “blind.”  And worse, when the heart monitor showed abnormalities indicating that the needle was touching the heart, the doctor did not stop the procedure.  Instead, he pushed on, puncturing the heart and causing the man’s rapid death.

The defense in this case urged the jury to conclude that what happened was “a risk of the procedure”–just bad luck, really, and that the doctors had done nothing wrong.  However, we were able to show that when something is a known risk, it’s even more important for the doctors to try to prevent that risk from occurring.  And that makes sense.  If you know the driveway is slippery and you might fall–you take precautions.  Maybe you spread salt on the pavement.  Maybe you walk more carefully.  Likewise, if a doctor is doing something that has a risk of harm, the negligence may be in not taking appropriate steps to prevent that harm.

This idea of taking appropriate precautions ties into the concept of informed consent.  When a patient gives informed consent, he acknowledges that he is aware that some risk is involved, even if everything is done perfectly–and he accepts that risk.  But that patient still has the right to expect the doctor to take every reasonable precaution to minimize or prevent that risk.  Put another way, the patient does not consent to malpractice, nor does he give up his right to bring a claim if the doctor is negligent in causing the injury.

This distinction, between an injury that occurs despite proper care by the doctor, and an injury that is caused by negligence, is important when evaluating a case where the injury is a “known risk” of the procedure.  That doesn’t end the inquiry–the crucial question is whether that “risk” should have been anticipated and prevented.  If so, there may be a valid malpractice claim.


Case Law Update: Massachusetts Governmental Immunity

trap for unwaryThe Massachusetts appellate courts have recently decided two cases that present very different views of the notice requirement that applies to claims against governmental agencies in the Commonwealth.  In one case, the Supreme Judicial Court took a very reasonable and practical view of the requirement, while just two weeks earlier, the Appeals Court applied a more restrictive reading that surprised many lawyers and created a new trap for the unwary.  Lawyers and potential claimants should be aware of both cases.

As most lawyers know, a personal injury claim against the Commonwealth of Massachusetts or one of its municipal entities must be presented to the appropriate authority within two years.  The purpose behind the notice requirement is to allow the governmental agency an opportunity to evaluate and, if appropriate, settle, the claim before suit is filed.  In practice, it is almost unheard of to have a government agency present a settlement offer before suit.  Indeed, these agencies have very little incentive to settle claims, as they are not subject to pre-judgment interest, they are defended by staff attorneys already on the payroll–thus avoiding additional legal fees–and  their liability is capped at $100,000.

Instead of evaluating and settling claims, as contemplated by the statute, many government agencies habitually allow the six-month notice period to elapse without bothering to respond, and then try to defeat the claim by raising technical defects in the notice.  Thus, General Laws, Chapter 258, Section 4, which establishes the notice requirements, has been the subject of significant litigation over the years as the parties and the courts have tried to decide when minor defects in the statutory requirements might be overlooked.

The Supreme Judicial Court cast a vote for common sense in Shapiro v. Worcester, 464 Mass. 261 (January 30, 2013), holding that the notice requirement would not be applied retroactively to bar claims for nuisance for which presentment was not required at the time the cases were filed.  The plaintiffs in Shapiro had brought private nuisance claims against the City of Worcester for damage to their properties resulting from the discharge of raw sewage from city sewers onto their land.  In accordance with the  SJC decision in Morrissey v. New England Deaconess, 458 Mass. 580 (2010), these claims were subject to the limitations and requirements of Chapter 258–however, the Shapiros’ claims had been filed in 2008, before Morrissey was decided.  The SJC, quite sensibly, ruled that the requirement of notice would not be applied retroactively to preclude claims that were proper when filed.  The Court noted that, to hold otherwise, would “only invalidate otherwise viable claims,” and would do nothing to effectuate the purpose of Chapter 258.

Just twelve days earlier, however, the Appeals Court issued a decision that surprised many practitioners, holding that a claim was barred if not presented to the government by a properly appointed executor, even though the notice was otherwise adequate and correct in all respects and even though the executor was soon thereafter appointed by the probate court.  In Gavin v. Tewksbury State Hospital, 83 Mass. App. 139 (January 18, 2013), the court held that the required notice must be given by a properly appointed party with authority to bring the claim, even though the presentment clearly identified the decedent’s daughters, who would be the statutory beneficiaries of the claim.

Gavin creates a trap for the unwary, as it is inconsistent with the longstanding practice that a complaint filed by an estate will not be dismissed for lack of a proper party, but instead, the appointment of a personal representative for the estate will relate back to the filing.  See, Mellinger v. West Springfield, 401 Mass. 188 (1987).  Lawyers who are familiar with this “relation back” law would rightly expect that the same principle would apply to the presentment requirement.  This is particularly true because, for purposes of the government’s evaluation of the claim and the potential damages, the relevant parties are the statutory beneficiaries–in Gavin, the decedent’s daughters–and not the personal representative, who is simply a conduit for the recovery.  These points and others are thoughtfully made by Appeals Court Associate Justice Peter W. Agnes, Jr., in his dissent.

Gavin elevates form over function, and would seem to be inconsistent with the SJC’s unwillingness to “invalidate otherwise viable claims,” as expressed in Shapiro.  Although Shapiro did not involve a defect in the actual presentment, the Court’s view perhaps signals a more practical view of the notice requirement and its underlying purpose than was applied in Gavin. The plaintiff in Gavin has filed an application for further appellate review, which will give the SJC an opportunity to clarify this issue.
 


Deciding on an Autopsy

Not uncommonly, I get a call from a distraught family member.  A loved one has just died, and someone needs to decide whether there should be an autopsy.  A terribly unpleasant decision to make, particularly under stressful and emotional circumstances.  And if the death has been preceded by events the family considers suspicious, the decision-making process is that much more emotionally charged.

Sometimes the call is precipitated by the fact that one or more family members don’t want to have their loved one subjected to the invasive procedure of autopsy.  “He’s been through enough.  I don’t want him to be cut again,” is a common refrain.  It may be a doctor who’s pushing the autopsy–in which case the doctor should be asked to explain the reason and the anticipated benefits, and leave the choice to the family, just as with any other medical procedure.

Other times, a family member is considering an autopsy as a means to answer unanswered (and sometimes unanswerable) questions.  I can hear the cynics bemoaning the fact that families are considering a lawsuit “at such a time.”  But sometimes the circumstances leading up to death make it almost inevitable that the thought will cross someone’s mind.  Consider, for example, a recent case we handled, where a healthy young wife and mother went to a day surgery facility for what was supposed to be a routine procedure to correct a sinus problem.  She ended up being transferred to a hospital, where she later died of internal bleeding.  With such an unexpected result, there are bound to be questions.

When the question is asked, I usually advise the family seriously to consider the autopsy.  Information is almost never a bad thing.  If the circumstances warrant litigation, the autopsy can provide important evidence of the cause of death, and the existence or non-existence of other medical conditions.  And sometimes, the autopsy shows something unexpected that may explain the death, or otherwise show that there was no malpractice.  Isn’t that a good thing for everyone to know?

Another question families ask, if the autopsy is to be performed at the same place where the death occurred, is, “Can I trust the hospital pathologist?”  Call me naive, but I believe that for the most part, the answer is yes.  In my experience, pathologists seem to be among the most scientifically honest members of the medical profession.  Not to say that cover-ups, or simply favorable, or even biased, interpretations don’t occur, but for the most part, I think pathologists call ’em like they see ’em.

The autopsy also preserves important information, in the form of stored tissues and prepared slides, for later use.  An independent pathologist can review the slides, or even have new tissue cuts prepared.  This process permits a second opinion to check the accuracy of the original review, or a new interpretation if additional clinical information is discovered.


Liz Mulvey to Present at AAJ National Meeting

Liz Mulvey will speak on cross-examination at the American Association for Justice’s Winter Convention in Miami, Florida, on February 12, 2013.  The annual event brings together lawyers from all over the country for educational programs on various topics related to the representation of injured victims.

Mulvey’s lecture, entitled “Rules of the Road in Medical Negligence Cases – Cross Examination,”  will focus on how to use common-sense principles to cross examine medical experts.  She will join a panel of noted lawyers from across the country as part of a five-day advocacy track designed to help lawyers present their clients’ cases in a persuasive and effective fashion at trial.

The “Rules of the Road” approach, pioneered by trial lawyers Pat Malone and Rick Friedman, aims to help lawyers develop rules of conduct for different situations that help to frame the important issues for the jury.  Mulvey will discuss how to use the Rules of the Road in medical malpractice cases to conduct an effective cross-examination of defense expert witnesses and to help jurors understand why adherence to these rules is required for patient safety.

Mulvey, who has taught trial practice to lawyers from across the country, advocates an aggressive approach to cross-examination that attempts to establish important elements of the plaintiff’s case through the defense experts, and to focus on areas for which the experts may not be well-prepared.  Her techniques have led to many memorable examinations and courtroom successes.


Experts, Sign Here

signing document from topA recent change to the Massachusetts Rules of Civil Procedure regarding expert disclosure may create a short-term trap for the unwary, but in the long run will likely benefit plaintiffs by providing impeachment material for defense expert witnesses who have always enjoyed a fair amount of latitude to improvise in giving trial testimony.  Effective January 1, 2013, the Supreme Judicial Court has approved new Rule 30B of the Massachusetts Rules of Civil Procedure.  The Rule requires that answers to expert interrogatories be signed not only by the party, but by the expert, as a certification that the disclosure accurately reflects the expert’s opinion.

To lawyers who regularly practice in federal courts, or in other states where more extensive expert discovery is routine, this rule change may seem insignificant.  But to lawyers accustomed to the Massachusetts practice, where expert reports are not usually discoverable and expert depositions are permitted only by leave of court, this Rule represents the first opportunity to hold an expert witness accountable by impeachment with the contents of a party’s disclosure.  Until now, an expert confronted with an inconsistency or omission in a Rule 26 disclosure could usually avoid impeachment by denying any involvement with the preparation of the answer.  This new rule closes that loophole up tight!

While the rule applies equally to both sides–and even covers a party’s employees who regularly give testimony as part of their job duties–in many cases, the practical effect will be to help level the playing field for plaintiffs.

In many medical malpractice cases, the defense already has the benefit of a signed report from the plaintiff’s expert that was presented to a medical malpractice tribunal as required by General Laws, Chapter 231, Section 60B.  This report, usually prepared before the plaintiff is entitled to any discovery or depositions from the defendant, contains preliminary opinions.  These reports are intended simply to satisfy the minimal standard of the tribunal, and not to be a full disclosure of the expert’s opinion as required by Rule 26.  It is common that later testimony or records may cause the expert to modify some opinions and develop new ones which were not apparent at the time of initial review.  Nevertheless, most judges will permit the plaintiff’s expert to be questioned about this letter, and often will not permit the jury to hear about the circumstances surrounding its preparation, the purpose of the opinion letter, or even what limited information was available at the time.  Thus, the plaintiff is forced by the tribunal requirement to supply the defendant with a written opinion that often becomes fodder for impeachment, while the defense expert is not required to put his name to anything.

Rule 30B requires both sides to obtain their experts’ affirmation that the disclosure of their opinions is accurate.  Even in the absence of a signed report, this adoption by the experts of the disclosure statement should make the disclosure available for impeachment if the expert deviates in his testimony.   The Rule strikes a good balance between the need for both sides to have a means to impeach opposing experts and the greatly added expense of forcing an expert to prepare a report, as the federal courts require.

There will, no doubt, be lawyers who omit the required expert attestation, especially in the early days of the new rule.  The Rule is silent as to the consequences of non-compliance, but it is difficult to believe that a trial judge would preclude the testimony of an expert whose disclosure, although substantively sufficient, was not properly signed.  More likely, the offending party will be given an opportunity to secure the expert’s signature, as there seems to be no prejudice to the opponent as long as the disclosure is available for impeachment when the witness takes the stand.

The more thorny problem arising from non-compliance will come when an expert, presented at or shortly before trial with a disclosure made in his name, refuses to adopt it as his own.  In that situation, the proponent of the expert would be forced to attempt an eleventh-hour revision of the disclosure.  Depending on the nature of the change, that attempt may provoke the full range of consequences for late disclosure, up to and including preclusion of the expert’s testimony.


New Healthcare Law: Notice Provision

Aldrich_Ames_mailboxOn August 6, 2012, Governor Patrick signed Senate Bill 2400, the so called Massachusetts Health Care Cost Bill. The stated purpose is to improve the quality of health care and reduce costs through “transparency, efficiency, and innovation”.

The statute is diverse in its intended and unintended breadth and consequences. This is also true with respect to its effect in medical malpractice cases. One of the most significant consequences of the new law is the additional notice requirement now placed on victims of medical malpractice and their attorneys. Thus, when evaluating a possible medical malpractice case, in addition to considering all time restrictions and notice requirements already in effect in the Commonwealth, attorneys must now also consider the requirements set forth by this new law.

What is it?

The statute itself can be found at Mass. Gen. Laws ch. 231, § 60L. The new law requires Plaintiffs to provide notice to health care providers prior to the filing of a Complaint alleging medical malpractice. Health care provider is defined as a person, corporation, facility or institution licensed by the Commonwealth to provide health care or professional services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, social worker, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his employment.

When?

The Plaintiff must provide notice to health care providers 182 days prior to the filing of the Complaint. The 182-day notice period can be shortened to 90 days if: 1) the Plaintiff previously filed the 182-day notice against another health care provider involved in the claim or 2) the Plaintiff already filed a medical malpractice lawsuit against any health care provider involved in the claim. If the Defendant provides the statutory response within the 150-day period, then the Plaintiff may file the Complaint after the 182-notice period. If the Defendant does not provide the statutory response within the 150-day period, then the Plaintiff may file the Complaint after the expiration of said 150-day period. If the Defendant notifies the Plaintiff in writing that he/she/they do not intend to settle within the notice period, then the Plaintiff may file suit, assuming the statutes of limitations and repose are not a bar. As an important side note, the notice requirement does not apply to lawsuits brought within 6 months of the statute of limitations or within 1 year of the statute of repose, as to any claimant.

How?

The notice must be sent to the last known professional business address or residential address of the Defendant(s)/health care providers (as defined above). This includes providing notice to hospitals or practice groups for systemic allegations, since they also fall under the statute.

The notice must include the following:

  1. The factual basis for the claim;
  2. The applicable standard of care;
  3. How the defendant breached the standard of care;
  4. What the defendant should have done;
  5. How the defendant’(s’) breach of the standard of care caused the Plaintiff’s injury; and
  6. The names of all health care providers that the plaintiff intends to notify in connection with this case.

In addition to providing the above-referenced notice, the Plaintiff must, not more than 56 days after giving notice, provide the defendant with all medical records related to the claim.

Response?

Within 150 days of receiving notice, the Defendant or his/her/their representative must provide the Plaintiff with a response that includes the following:

  1. The factual basis for the defense;
  2. The applicable standard of care;
  3. How the defendant complied or failed to comply with the standard of care; and
  4. How the alleged breach of the standard of care did or did not cause the Plaintiff’s injury.

In the event that the Defendant does not provide the above response, and, if reference is made in the Complaint, or by other means, to this failure, then interest shall accrue from the date of notice (rather than from the date of filing).

The possible ramifications of this new law are as of yet unknown. The optimist maybe encouraged by the prospect of earlier settlements for certain types of cases. Myself, being somewhat more cynical, see nothing  more than yet another obstacle for medical malpractice victims in Massachusetts. Time will tell. However, as was the case with the medical malpractice tribunal statute years ago, one should expect that there will be plenty of appeals over the next few years that attempt to further define the statute, as well as challenge whether attorneys have complied with the statute.  Monitus Es – You’ve been warned.