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The Hurdles of Medical Malpractice: Part One

law-education-series-3-68918-mIn order to bring a suit against a health care provider in Massachusetts there are two hurdles that every aggrieved individual must overcome: a 60L notice of intention to sue letter and a medical malpractice tribunal. This entry will focus on the former- the notice to sue letter.

 In November of 2012 a new law went into effect that greatly changed the landscape of a medical malpractice claim. As a prerequisite to filing suit in Massachusetts against a health care provider, the Commonwealth requires that an aggrieved individual give the health care provider (or institution) 182 days notice prior to commencing an action in court. This notice is to be in writing and sent to the last known professional business address or residential address of the health care provider. The notice letter is often referred to as a “60L notice of intention to sue letter.”

 The 60L letter has certain requirements that must be met in order for an individual to pursue his or her claim in a court of law. First, the aggrieved party must state the factual basis for their claim. Generally, this means that the individual must expound upon the circumstances bringing about the complained of activity- whether for a surgical instrument that was left inside the body, or a health care provider’s failure to diagnose a certain condition. Second, the complainant must state the “applicable standard of care” of the health care provider as well as an indication as to how the health care provider failed to adhere to that standard. Put another way- the complainant must state what the health care provider was supposed to do relative to the care and treatment of the patient, and how they failed to conform to the rules of medicine with the complainant. Generally, this requires the knowledge and/or guidance of a medical expert that supports the complainant’s claim.

Third, the letter must indicate how the complained of activity by the health care provider was the proximate cause of the individual’s injury or damages. It is not enough to show that the health care provider deviated from the standard of care, the aggrieved individual must indicate how the actions (and/or inaction by the health care provider) caused his or her injuries. This, too, requires the knowledge and/or guidance of a medical expert who supports the individual’s claim. Fourth, the complainant must provide the names and addresses of all other health care providers that the individual intends on notifying relative to the claim. For instance, if the letter is being sent to a physician, the complainant may also want to notify the physician’s private practice or the hospital that he or she performed the alleged negligent act.

After the 60L letter is sent to the proper parties, the individual must provide the health care provider(s) with access to all medical records relative to his or her claim within 56 days. If the individual does not have immediate access to these records (i.e. possession of the records), the law requires that the individual sign a release for the health care provider(s) to order/inspect the medical records directly.

Within 150 days from the date in which the health care provider receives the 60L notice, the health care provider is to respond to the allegations contained within the 60L notice letter. The response letter is to include the following:

  1. the factual basis for the defense, if any, to the claim;
  2. the standard of care that the health care provider claims to be applicable to the action;
  3. the manner in which it is claimed by the health care provider that there was or was not compliance with the applicable standard of care; and
  4. the manner in which the health care provider contends that the alleged negligence of the health care provider was or was not a proximate cause of the claimant’s alleged injury or alleged damage.

The legislative intent behind this law is to encourage settlement of claims prior to commencing a law suit by having the parties engage in a meaningful discussion about the complained of activity. For more information on this, please see Massachusetts General Laws Chapter 231 Section 60L.  If you believe you have a medical malpractice case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.