More Costs to Bear?

money bagNext Tuesday, Elizabeth Mulvey of Crowe & Mulvey LLP will appear before the Massachusetts Supreme Judicial Court to fight a disturbing lower court ruling that has the potential to impose additional financial burdens of victims of medical malpractice and the lawyers who represent them.  In Faircloth v. Delillio, the mother of a severely brain damaged young girl brought suit against three health care providers who failed to notice that the amount of amniotic fluid in utero was dangerously low.  After finding that there was sufficient evidence as to two of the defendant providers, the tribunal found insufficient evidence against the doctor who actually looked at the ultrasound images.

In response to a perceived “medical malpractice crisis” nearly forty years ago, the Massachusetts legislature enacted General Laws, Chapter 231, Section 60B, establishing a pre-trial screening process intended to weed out “frivolous” medical malpractice cases.   The statute requires that all medical malpractice cases be presented to a panel consisting of a Superior Court judge, a lawyer, and a doctor, which will determine whether the case has sufficient merit to proceed to trial.  If the tribunal finds insufficient evidence, the plaintiff may pursue the case only by posting a $6,000 bond to pay the defendant’s costs in the event of a defense verdict at trial.

An important feature of the statute is a provision permitting the Superior Court to reduce the amount of the bond if the plaintiff is indigent and cannot afford the full $6,000.  This provision serves a crucial constitutional function by insuring that no one is deprived of access to the court because of an inability to pay.

However, in the Faircloth case, the Superior Court, while finding the plaintiff indigent, refused to reduce the amount of the bond, reasoning that the plaintiff’s attorney was advancing all other costs, and should be responsible for the bond as well.  Mulvey will argue that there is no legal authority to force counsel to pay for the bond, and that such a system would often create a conflict between the plaintiff and his counsel.  Further, such a rule would be unfair to plaintiffs whose lawyers were unwilling or unable to post the bond, perhaps even forcing them to change lawyers on short notice in the middle of a case.


Read the briefs filed by Crowe & Mulvey, LLP, the attorney for the doctor, and the Professional Liability Foundation, an organization of hospitals and malpractice insurers.

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.


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.


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.


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.