How & When to File A Medical Malpractice Lawsuit

In the recent case of Arsenault v. Bhattacharya, Mass. App. Ct. No. 15-P-197, August 3, 2016, a woman who began receiving cortisone injections in her wrist in 2008, and continued receiving them in 2009 and 2010, later having multiple surgeries on that same wrist in 2010 and 2011, filed a medical malpractice action in 2013 against the medical provider who had administered cortisone shots between 2008 and 2010. (Someone wishing to file a medical malpractice complaint in Massachusetts is generally limited by a three-year statute of limitations.)

The medical provider moved to dismiss the lawsuit for failure of the patient to comply with Mass. Gen. Laws c. 231 § 60L in providing the six-month required notice; and the lower court agreed and dismissed the complaint.

Mass. Gen. Laws c. 231 § 60L is the controlling statute for medical malpractice cases within the Commonwealth. It essentially requires that a person not file a complaint without first giving the medical provider 182 days written notice outlining, among others, the factual basis, the applicable standard of care and the manner in which the medical provider breached that standard.

However, in looking at the plain language of the statute, the Appeals Court decided,

[Because] the Legislature decided not to impose a penalty for noncompliance with § 60L, we think it clear that the “Legislature did not intend that the procedures of [§ 60L] should unreasonably obstruct the prosecution of meritorious malpractice claims or that they should eliminate any substantive right of injured persons to sue for damages.” Hanley v. Polanzak, 8 Mass. App. Ct. 270, 274 (1979).

In addition to noting that the statute fails to provide a penalty for noncompliance, the Court also noted that the medical provider had assisted the patient with her workers’ compensation claim, opining in a letter that the disability was related to the cortisone shots – directly implicating his own work, and that the patient had sent a notice of intent to file the complaint to the medical provider’s attorney before filing it.

Knowing the procedural requirements of handling a medical malpractice case can be overwhelming for someone already suffering injury or harm as a result of a medical provider’s treatment. You need a knowledgeable and experienced attorney on your side. If you know someone who has been injured or harmed as a result of treatments they have received by a medical provider, contact the attorneys at Hutchins Law, P.C. today.

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.