Document Category:
State: California
Subject Matter: Senate Bill No. 2400 - Health Care Reform
Document Title:
Comments:

Morrison
Mahoney llp

Memorandum

From:

Dennis R. Anti, Partner – Morrison Mahoney LLP

Subject:

Senate Bill No. 2400

Health Care Reform

Date:

August 15, 2012

As many of you know, on August 6, 2012 Governor Deval
Patrick signed into law Senate Bill No. 2400, (An Act improving the quality of
health care and reducing costs through increased transparency, efficiency, and
innovation).  This statute will go into effect ninety (90) days from the
date it was signed by the Governor.  This 349 page Bill deals with a
number of different aspects of health care.  With regard to medical
malpractice actions, I would like to outline three (3) of the major changes from
our current litigation system.

I.  M.G.L. c.231, §60L (New
Section Added to Statute)

This new section of the statute completely changes how
medical malpractice cases can be filed in the Commonwealth of Massachusetts. 
It now requires the following procedure:

Ø 
Before a claimant can file a medical malpractice
case, they must provide written notice to the health care provider 182 days
before the action is commenced.  This notice must include the following:

·        
The factual basis for the claim;

·        
The applicable standard of care alleged by the
claimant;

·        
The manner in which the applicable standard of
care was breached by the health care provider;

·        
The alleged action that should have been taken
to achieve compliance with the standard of care;

·        
The manner in which the alleged breach of the
standard of care was the proximate cause of the injury; and

·        
The names of the health care providers that the
claimant intends to notify in relation to the claim.

Ø 
The notice of such claim shall be mailed to the
last known professional address or residential address of the health care
provider.

Ø 
After giving notice, the claimant shall, within
fifty-six (56) days, allow the health care provider access to all of the
medical records related to the claim in the claimants control, and shall
furnish a release for any medical records related to the claim that are not
under the claimant’s control, but which the claimant has knowledge.

Ø 
Within 150 days after receipt of the notice, the
health care provider or authorized representative shall furnish a written
response containing the following information:

·        
A factual basis for the defense, if any;

·        
The standard of care that the health care
provider claims to be applicable;

·        
The manner in which it is claimed by the health
care provider that there was or was not compliance with the standard of care;
and

·        
The manner in which the health care provider
contends the alleged negligence was or was not the proximate cause of the
claimant’s alleged injury.

Ø 
If the claimant does not receive written
response within the required one hundred fifty (150) days, the claimant may
file a medical malpractice case, and include in its complaint the failure of
the health care provider to respond.  By doing so, interest on any
potential judgment shall be calculated from the date the notice was filed rather
than the date the lawsuit was filed.

Ø 
If the health care provider informs the claimant
in writing that there is no intent on settling the claim, the claimant may then
file its action for medical malpractice.  Once this notice is received,
the claimant is not required to wait the remaining 150 days to file suit.

Ø 
This section does not apply to cases regarding a
lawsuit against a health care provider filed within six (6) months of an
expiring statute of limitations, or one year of any expiring Statute of Repose.

Ø 
This section does not apply to the filing of a
lawsuit to seek Court Orders to preserve and permit inspection of tangible
evidence.

Comment:

The health care provider or its authorized
representative is now mandated to respond to the claimant’s initial notice to
avoid early tolling of interest.  Other than this interest requirement,
there does not appear to be any additional disadvantage in not responding to
the claimant’s initial notice.  Additionally, the statute allows access to
the claimant’s records (some outside of the claimant’s control) by release
.  This will give the health care provider a factual basis to evaluate the
claimant’s allegations.



II.  M.G.L. c.231, §85K – Charitable
Immunity
(Change to Statute)

The legislature has increased the charitable immunity
statute involving non-profit organizations providing health care not
to exceed the sum of $100,000.00 exclusive of interest and costs.

III.  M.G.L. c.233, §79L (New
Section Added to Statute)

This new section of the statute applies to statements
made by a health care provider to a patient with regard to an unanticipated
outcome involving medical treatment or a procedure.  With the advent of
“apology and disclosure”, this new section outlines the protections granted to
the health care provider in making disclosures to patients.

Ø 
This statute applies to a “facility” which is
defined as a hospital, clinic, or nursing home.  It also includes
psychiatric facilities, or a home health agency.

Ø 
This statute also applies to “health care
provider” which includes any health care professionals licensed under Chapter
112.  This includes:  physician, podiatrist, physical and
occupational therapists, dentist, dental hygienist, optometrist, nurse, nurse
practitioner, physician assistant, chiropractor, psychologist, independent
clinical social worker, speech pathologist, audiologist, marriage and family
therapists, or mental health counsellor.  As, in the definition of
facility mentioned above, this also would include:  any professional
corporation, partnership, limited liability company, authority, or other entity
comprised of health care providers.

Ø 
The statute defines an “unanticipated outcome”
as medical treatment or procedure that differs from the intended result whether
or not it was an intentional act.

Ø 
This statute mandates that where a patient
suffers an unanticipated outcome with “significant medical complications”
resulting from the providers mistake, the health care provider and/or facility shall
fully inform the patient and, when appropriate, the patient’s family about said
unanticipated outcome.

Ø 
The statute protects the facility or health care
provider from any claim, complaint or civil action brought on behalf of a
patient who experienced an unanticipated outcome from statements, affirmations,
gestures, activities or conduct expressing benevolence, regret, apology,
sympathy, commiseration, condolence, compassion, mistake, error, or a general
sense of concern which may be made by a health care provider or its agent to a
patient or relative of a patient, or representative of a patient, regarding an
unanticipated outcome.

Ø 
These statements, et al, are not admissible as
evidence in any judicial or administrative proceeding unless the maker of the
statement, or the defense witness, when question under oath, makes a
contradictory or inconsistent statement as to the material facts or opinions in
regard to this disclosure.  In these instances, these statements, et al,
shall be admissible for all purposes.



COMMENT:

It is important to appreciate that there are two
significant prongs to this section of the statute.

This new section of the statute mandates full
disclosure to a patient and/or family by the medical care provider where a
patient suffers an unanticipated outcome with significant medical complication
resulting from the providers mistakeThis section mandates
this disclosure when the unanticipated outcome causes a significant
medical complication
.
.  The section does not attempt to define a
“significant medical complication” or “mistake”.  This will be an
evaluation, at this time, on a case by case basis.

The section of the statute also gives adequate
protection to the health care provider / facility in making disclosure
expressing apology, sympathy, compassion, condolence, or mistake or error,
without fear that it will be used in a later legal proceeding.  This
protection is eroded at the time of the legal proceeding, if the maker of the
statement or the defense witness makes either contradictory or inconsistent
statements during testimony.  In that case, the original statements may be
introduced into evidence for “any purpose”.

 


Document Author: Dennis Anti Partner
Firm/Company: Morrison Mahoney LLP
Document Date: August 15 2012
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