In any civil lawsuit, the plaintiff must ensure the at-fault party or parties receive notice of the claim so that they can appropriately respond. In Massachusetts medical malpractice actions, the General Laws specifically require that an injured patient or estate give written notice to a provider of health care 182 days before the case begins. (See G. L. c. 231, § 60L.) The claim must include the factual basis for the claim, the standard of care alleged by the claimant, the breach of the standard of care, the course of action that should have been taken, how the breach injured the patient, and the names of all the health care providers that the injured person intends to sue.
In the recent decision of Arsenault vs. Battacharya (15-P-197), the Massachusetts Appeals Court looked at whether or not dismissal without prejudice was too harsh a remedy when an injured party failed to provide notice in accordance with G. L. c. 231, § 60L. In this case, the injured patient went to her general practitioner, the defendant in this case, for carpal tunnel in her wrists. The primary care physician injected her wrists with cortisone, with two separate injections on each wrist over three visits. Later, after surgeries on both wrists, she discovered that the tendon ruptures were caused by cortisone injections.
The filed complaint alleged that the doctor should have known that multiple cortisone shots would increase the risk of rupture to her wrists. The knowledge this was a possibility can be seen in a letter written by the doctor for the injured person’s workers’ compensation claim. The injured patient alleged that she became totally and permanently injured as a result of the negligently administered cortisone shots. The claim was filed nearly six years after the first injection to one of her wrists but within three years of the start of the statute of limitations, which began when she was told by an Independent Medical Examiner that her ruptures were caused by the shots. The defendant doctor moved for dismissal, alleging non-compliance with G. L. c. 231, § 60L, and the motion was granted by the trial court.
The appellate court first looked at case law dealing with the use of dismissal as a remedy. According to several Massachusetts cases, dismissal should be discouraged and only occur in extreme situations in which there is no set of facts that would entitle the injured person to relief. The court pointed out that the legislature did not provide any guidance on what an appropriate remedy would be, should notice not be given under G. L. c. 231, § 60L. The court felt that the absence spoke for itself and that an injured party should then be given the benefit of the doubt under the Commonwealth’s civil rules of procedure. The court looked at case precedent that emphasizes that courts should adjudicate substantive controversies when they can, permitting time and corrective action for formal and technical elements of procedure when not specifically prevented by statute. The dismissal was reversed, and the case was remanded to the lower courts, allowing the injured patient to continue with her claim.
The Massachusetts personal injury attorneys at Karsner & Meehan have the knowledge and experience you need to guide you through the complexities of a medical malpractice case. For a free, confidential consultation, contact our office at 508.822.6600.
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