Practice trends emerge following adoption of Mass. med-mal notice law

In July 2012, the Massachusetts Legislature passed a medical malpractice reform law designed to encourage pre-suit settlement talks. The law, among other requirements, mandates that a patient’s attorney provide notice to a healthcare provider, within 182 days prior to filing a lawsuit, of any alleged medical negligence, unless the claimant files a med-mal suit within six months of the statute of limitations expiring. Pamela S. Gilman discusses below some of the issues she and other attorneys at Barton Gilman have encountered since the pre-suit notice provision of the law (M.G.L. c. 231, § 60L) went into effect.

Q. What information must plaintiffs’ attorneys include in the 60L notice?

A. The notice must include a description of the factual basis for the claim, the patient’s theory of how the standard of care was breached, and how that breach was the proximate cause of the alleged injury.

Q. Is there anything else a claimant must do after sending the notice of claim to the healthcare provider?

A. Yes. Within 56 days of providing notice, the patient must give the provider copies of all medical records “related to the claim” that are within the patient’s control, along with releases for records “related to the claim” of which the patient is aware, but that are not within the patient’s control. It is our practice to ask the patient’s attorney to provide us as counsel with copies of all records, and not send them directly to our clients.

Q. Do healthcare providers have any reciprocal obligations under the law?

A. Yes. Within 150 days of receiving notice of a claim, the provider must send to the claimant a written response covering a number of topics, including the factual basis for the defense to the claim, the standard of care applicable to the claim, the manner by which the medical provider complied with the standard of care, and also how the alleged negligence was not a proximate cause of the patient’s alleged injuries. Before preparing and sending this response, we recommend retaining appropriate experts to review the case and to provide opinions about the care provided. The response need not be lengthy, but should be just enough to provide sufficient information to satisfy the statutory requirements.

Q. Does the law have any noteworthy gaps or omissions?

A. One gap is that the law does not sanction a claimant if his or her attorney fails to send a letter, or if the letter fails to include the appropriate information. On the other hand, the law penalizes the defense for failing to respond to the notice letter by triggering pre-judgment interest sooner, i.e., from the date of the notice letter rather from the date the suit is filed.

Q. Have you seen any particular trends since the law went into effect?

A. It appears that most attorneys representing patients have opted to send the notice letter rather than wait until the six-month window to file suit before the statute of limitations expires. The practical effect of the notice letter is that carriers and defense counsel undertake an investigation sooner in time on behalf of providers, which may prove to be helpful since memories are usually clearer, and witnesses may be available to provide information about the allegations.

Q. What should a provider do when it receives a 60L letter from a patient’s lawyer?

A. A provider should notify his or her professional liability insurance company, and we routinely guide our clients through that reporting process. The claim should be covered to the same extent a lawsuit would be covered, and the insurance company will generally assign counsel to investigate and defend the provider’s interests.

Pam is administrative partner of Barton Gilman’s Boston office. She focuses her practice on defending medical professionals against professional liability claims.