Pre Litigation Notice Now Required in Med Mal Cases

A new element of Massachusetts health care reform law requires potential medical malpractice litigants to notify the alleged tortfeasor within a certain timeframe.

According to M.G.L. c. 231, s. 60L(a), a medical malpractice action cannot be commenced unless notice is given at least 182 days before suit is filed. The notice must contain the following elements:

  • the factual basis for the claim
  • the applicable standard of care alleged by the claimants
  • the manner in which it is claimed that the standard of care was breached
  • the alleged action that should have been taken
  • the manner in which it is alleged the breach was the proximate cause of claimant's injury
  • the names of all health care providers that the claimant intends to notify

The health care provider is then given the opportunity to investigate the claims. They also must provide a response within 150 days. This response must include:

  • the factual basis for the defense, if any
  • the standard of care that the health care provider believes is applicable
  • the manner in which the health care provider claims that there was or was not compliance with the standard of care
  • the manner in which the health care provider contends that the alleged negligence was not the proximate cause of the claimant's alleged injury

Failing to respond could have nasty consequences for the health care provider. For one thing, it may entitle the claimant to a lawsuit. Interest on any judgment would also date back to when the notice was filed instead of when the action was actually commenced in court. The claimant may commence action at the expiration of the 150 day response period or after receiving a response from the health care provider that there will be no settlement offer. If the health care provider makes any statement of regret, mistake, or error, it cannot be used as evidence to prove mistake. However, it can be used against the writer of the response if later on the stand said person contradicts those statements made.

Additional requirements include that the claimant must allow the health care provider access to his or her medical records within 56 days of the notice.

This new law could substantially change the course of medical malpractice claims, and requires medical malpractice attorneys to follow a new procedure at the start of any claim. Failing to do so could be fatal to a claimant's otherwise viable medical malpractice suit.

If you believe you've been the victim of medical malpractice, contact our office today for a free consultation.

Categories: Medical Malpractice
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