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The Law of Medical Malpractice in Massachusetts:

A Survey of Basic Considerations

Massachusetts medical malpractice law is among the most complex legal practice areas. The statutes, case-law, and regulations governing medical malpractice law in Massachusetts are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Massachusetts exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Massachusetts by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Massachusettsmedical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Massachusetts. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XII examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Massachusetts.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Massachusetts?
-Required Elements of a Medical Malpractice Claim in Massachusetts
-Introduction
-The Basic Elements
-Standard of Care and Breach
-Causation

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Massachusetts
-The Discovery Rule
-Introduction
-The Discovery Rule in Massachusetts
-Minors
-Legal Disability
-Fraudulent Concealment

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Massachusetts

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Massachusetts
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Massachusetts
-Good Samaritan Law for Non-Healthcare Providers
-Good Samaritan Law for Healthcare Providers
-Additional Immunities and Limitations on Liability

V. 182-Notice of Intent

VI. Required Elements of a Medical Malpractice Complaint

VII. Medical Malpractice Tribunal

VIII. Medical Expert Witnesses
-Introduction
-Qualifying as Expert Medical Witness in Massachusetts
-Admissibility of Expert Testimony
-Introduction
-Admissibility of Expert Witness Testimony in Massachusetts
-Five Foundational Requirements
-Application to Medical Malpractice Cases

IX. Modified Contributory Negligence

X. Limitations on Noneconomic Damages

XI. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Massachusetts

XII. Apologies and Sympathetic Gestures 

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Massachusetts?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

According to the Massachusetts Supreme Judicial Court (the state’s highest court), negligence in medical malpractice cases “means that the physician committed a breach of the ‘standard of care and skill of the average member of the profession’ practicing in his or her specialty.”  Parr v. Rosenthal, 475 Mass. 368, 376 (2016).  Compensable damages in medical malpractice cases include past and future pain and suffering, medical expenses, diminution in earning capacity, and loss of consortium.  Rodgers v. Boynton, 315 Mass. 279, 280 (1943).

Required Elements of a Medical Malpractice Claim in Massachusetts

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Massachusetts law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Massachusetts medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury.  The Massachusetts Supreme Judicial Court instructed that “negligence is without legal consequence unless it is a contributing cause of the injury.”  Berardi v. Menicks, 340 Mass. 396, 400 (1960).  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The standard formulation for the basic elements of a compensable medical malpractice claim in Massachusetts holds that “there must be sufficient evidence to warrant a finding (1) of negligence on the defendant’s part, and (2) of a causal relationship between the negligence and the plaintiff’s injuries.”  Civitarese v. Gorney, 358 Mass. 652, 655 (1971).  The formulation is further refined as follows: “In order to sustain a cause of action for medical malpractice under Massachusetts law, a plaintiff must prove negligence by establishing that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that as a proximate result of the defendant’s breach, the plaintiff was damaged.”  Rosario v. United States, 824 F.Supp. 268, 277 (D.Mass. 1993) (applying Massachusetts law).  Accordingly, the elements of a compensable medical malpractice claim in Massachusetts are expressed as follows:

  1. Duty—the healthcare provider owed the injured patient a legal duty to observe the proper standard of care against which the defendant physician’s conduct is measured;
  1. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty owed;
  1. Causation—the healthcare provider’s breach of the required standard of care proximately caused or contributed to causing injury to the patient; and
  1. Damages—the injured patient suffered damages because of the injuries.

The plaintiff has the burden of proving every essential element of his or her medical malpractice claim by a fair preponderance of the evidence.  Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250 (1940).  A “proposition is proved by a preponderance of the evidence if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.”  Id.

Standard of Care and Breach

As essential elements of a medical malpractice claim, the plaintiff must establish the applicable standard of care, demonstrate that the defendant breached that standard, and the breach caused plaintiff’s injury.  Palandjian v. Foster, 446 Mass. 100, 104 (2006).  The question of negligence is one of fact for the jury, and only “when no rational view of the evidence warrants a finding that the defendant was negligent may the issue be taken from the jury.”  Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983).

With respect to the standard of care, the Massachusetts Supreme Judicial Court abandoned the so-called “locality” rule[1] in the 1968 case Brune v. Belinkoff, 354 Mass. 102, 108 (1968), and announced the applicable standard of care in medical malpractice cases that remains the standard as of the date of this article as follows:

The proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. In applying this standard it is permissible to consider the medical resources available to the physician as one circumstance in determining the skill and care required. Under this standard some allowance is thus made for the type of community in which the physician carries on his practice.

One holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practicing the specialty, taking into account the advances in the profession. And, as in the case of the general practitioner, it is permissible to consider the medical resources available to him.[emphasis in original] Id. at 109 (internal citations omitted).

The Supreme Judicial Court clarified that “the standard of care is based on the care that the average qualified physician would provide in similar circumstances….”  Palandjian, 446 Mass. at 105.  As such, “the actions that a particular physician, no matter how skilled, would have taken are not determinative.”  Id.  Accordingly, “because the standard of care is determined by the care customarily provided by other physicians, it need not be scientifically tested or proven effective: what the average qualified physician would do in a particular situation is the standard of care.” [emphasis in original] Id.

Expert medical witness testimony is generally needed to establish the elements of a medical malpractice case.  Haggerty v. McCarthy, 344 Mass. 136, 139-140 (1962).  In most medical malpractice cases, the complex medical issues involved are simply beyond the common knowledge and experience of the judge and jury, so expert testimony is required to establish the applicable standard of care and breach thereof.  Id. at 141.

However, expert witness testimony is not required in cases where a layperson is capable of determining that negligence occurred and resulted in harm to the plaintiff based on common knowledge and experience.  Id. at 139.   That is, where the negligence and resultant harm are sufficiently obvious as to lie within a layperson’s common knowledge, expert testimony is not necessary to establish the standard of care and breach thereof.  The classic example of a situation that is within the common knowledge and experience of laypeople is where a foreign object is inadvertently left inside a patient following surgery.  Id. at 140.  In that situation, it does not require an expert medical witness to explain to the judge and jury that negligence occurred.

Causation

Causation between the defendant’s negligence and the plaintiff’s injury is another essential element of a medical malpractice claim.  As the Massachusetts Supreme Judicial Court instructed, “negligence is without legal consequence unless it is a contributing cause of the injury.”  Berardi v. Menicks, 340 Mass. 396, 400 (1960).  The plaintiff bears the burden of proving that the defendant’s negligence was the proximate cause of the plaintiff’s injury.  Murphy v. Conway, 360 Mass. 746, 749 (1972).  The question of causation is generally a question of fact for the jury.  Mullins,389 Mass. at 58.

Like with establishing the standard of care and breach, the “medical malpractice case law recognizes that the causal link between the defendant’s negligence and the plaintiff’s harm ‘generally must be established by expert testimony.’”Harlow, 405 Mass. at 702. The testimony must establish “that the injury was more probably than not a result of the physician’s negligence.”  Id.An expert medical witness’ opinion based on facts in evidence is sufficient proof of causation.  Mullins, 389 Mass. at 58.

Expert witness testimony that a causal connection between the negligence and the injury is possible, conceivable, or reasonable, without more, is not sufficient to meet the plaintiff’s burden of proof.  Berardi, 340 Mass. at 402.  Causation is not established “upon consideration of contingent, speculative, and possible results of treatment which might have been utilized to remedy or mitigate” the plaintiff’s injury, “but upon proof to a fair preponderance of the evidence that had proper treatment been administered,” the plaintiff would not have been injured or injured to the same extent.  Glicklich v. Spievack, 16 Mass.App.Ct. 488, 493 (1983).

Once again, though, “where a determination of causation lies within ‘general human knowledge and experience,’ expert testimony is not required.” Pitts v. Wingate at Brighton, Inc., 82 Mass. Att. Ct. 285, 289 (2012) (quoting Bailey v. Cataldo Ambulance Service, Inc., 64 Mass.App.Ct. 228, 236 fn.6 (2005)).

[1] The “locality” rule provides that the applicable standard of care by which a defendant healthcare provider is measured is the particular locality or community in which he or she practices.  It was first adopted by the Massachusetts Supreme Judicial Court in the 1880 case Small v. Howard, 128 Mass. 131 (1880).  However, in Brune, the Court announced: “We are of the opinion that the ‘locality’ rule of Small v. Howard … is unsuited to present conditions.  The time has come when the medical profession should no longer be Balkanized by the application of varying geographic standards in malpractice cases.  Accordingly, Small v. Howard is hereby overruled.”  Brune v. Belinkoff, 354 Mass. 102, 108 (1968).

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Massachusetts

The standard statute of limitations governing medical malpractice claims is contained inMassachusetts General Laws (“G.L.”), Chapter 260, §4.  It requires a claim to “be commenced only within three years after the cause of action accrues….”  The critical issue then is when does a cause of action accrue because that is the date when the statute of limitations begins to run against a plaintiff’s claim[1].Bowen v. Eli Lilly & Co., 408 Mass. 204, 205 (1990).

In 1980, the Massachusetts Supreme Judicial Court held that a cause of action for medical malpractice accrues under G.L.c. 260, §4 when “a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant’s conduct.”  Franklin v. Albert, 381 Mass. 611, 612 (1980).  Notice that the commencement of the three-year limitations period requires the plaintiff’s active or constructive discovery of both (1) injury and (2) that the injury is attributable to the defendant’s conduct.  It is important to understand that “actual knowledge of an injury and cause of the harm is not required to trigger the statute of limitations; knowledge may be imputed to a plaintiff, or a plaintiff may be charged with constructive knowledge.”  In re Massachusetts Diet Drug Litigation, 338 F.Supp.2d 198, 203-204 (D.Mass. 2004) (discussing Discovery Rule under Massachusetts law).

As to the second factor of the test, the standard for satisfying that factor is whether the plaintiff knew or had reason to know that he or she was harmed by the defendant’s conduct, not that the plaintiff knew or had reason to know that the defendant violated a legal duty to the plaintiff.  Bowen, 408 Mass. at 206.  The Massachusetts Supreme Judicial Court advised: “Reasonable notice that a particular product or a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations.”  Id. at 210.

“An objective standard is applied to measure what a plaintiff should have known, according to what a reasonable person in the plaintiff’s position, exercising reasonable diligence in pursuance of the duty to inquire into his injury, would have known.”  Diet Drug Litigation, 338 F.Supp.2d at204.As such, the limitations period begins to run when “an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury.”  Bowen, 408 Mass. at 207.  The issue of “when a plaintiff knew or should have known of his cause of action is one of fact which in most instances will be decided by the trier of fact.”  Riley v. Presnell, 409 Mass. 239, 240 (1991).

The application of Massachusetts’ medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Massachusetts medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Massachusetts attorney who specializes in medical malpractice law at the earliest possible opportunity.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the general statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Massachusetts

The Discovery Rule was adopted for application in medical malpractice cases by the Massachusetts Supreme Judicial Court in the 1980 case Franklin v. Albert, 381 Mass. 611, 612 (1980).  It did so by interpreting and holding that a cause of action accrues under G.L.c. 260, §4, which sets forth the statute of limitations governing medical malpractice claims, when “the plaintiff learns, or reasonably should have learned, that he has been harmed by the defendant’s conduct.”  Id. at 619.

The FranklinCourt announced: “we bring this Commonwealth in line with the vast majority of States that have adopted some form of discovery rule.”  Id.  Consequently, the Discovery Rule was introduced into Massachusetts medical malpractice law via a reinterpretation of when a cause of action accrues for purposes of G.L.c. 260, §4.

InFranklin, the Court expressly overruled its previous decisions that held a cause of action accruesfor purposes of G.L.c. 260, §4on the date of the negligence upon which the claim is based.  Id.  In doing so, the Court rejected its earlier position that an injured plaintiff had to “pursue his theoretical right of action before he had any chance to discover he had been injured.”  Id. at 614.  The Court noted that its previous interpretation of when a cause of action accrues constitutes a “manifest injustice.”  Id. at 618.  “[R]ather than punishing negligent delay by the plaintiff, it punishes ‘blameless ignorance’ by holding a medical malpractice action time-barred before the plaintiff reasonably could know of the harm he has suffered.”  Id.

The Discovery Rule and the standard statute of limitations governing medical malpractice actions are actually one and the same under G.L.c. 260, §4.

Minors

Medical malpractice claims by minors are governed by G.L.c. 231, §60D.  The basic rule is the same as that for adults, i.e., the claim must be “commenced within three years from the date the cause of action accrues….”  G.L.c. 231, §60D.  The Massachusetts Supreme Judicial Court held that a cause of action accrues when “a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant’s conduct.”  Franklin v. Albert, 381 Mass. 611, 612 (1980).

However, there is a special rule in the statute for plaintiffs younger than six years old.  G.L.c. 231, §60D.  They have until their ninth birthday in which to commence an action.  But the seven-year statute of repose governing medical malpractice claims applies to minors as well (see below Section in this article for discussion on statute of repose).Harlfinger v. Martin, 435 Mass. 38, 40 (2001).

The statute of repose operates differently than the statute of limitations.  The triggering event for the running of the seven-year repose period is the “occurrence of the act or omission which is the alleged cause of the injury upon which such action is based.”  G.L.c. 231, §60D.  Under the statute of repose, the starting of the seven-year repose period “is not related to the accrual of any cause of action.”  Harlfinger,435 Mass. at 41.  Whether the plaintiff discovered the injury and its cause are immaterial with respect to the running of the statute of repose.

The Massachusetts Supreme Judicial Court upheld the constitutionality of the application of the statute of repose to minors.  Harlfinger, 435 Mass. at 39.  The Court rejected the argument that the statute of repose, as it applies to minors, violates the due process and equal protection guarantees of the United States and Massachusetts Constitutions.  Id.

Legal Disability

The applicable statute of limitations is tolled if the plaintiff is incapacitated by mental illness at the time the cause of action accrues.  G.L.c. 260, §7.   The statute states that if a plaintiff “is incapacitated by reason of mental illness when a right to bring an action first accrues, the action may be commenced” within the applicable statute of limitation after the disability is removed.  G.L.c. 260, §7.  A person is incapacitated by mental illness by “any mental condition which precludes the plaintiff’s understanding the nature or effects of his acts” and thereby prevents him or her from comprehending his or her legal rights.  Pederson v. Time, Inc., 404 Mass. 14, 16 (1989).

Fraudulent Concealment

Fraudulent concealment tolls the statute of limitations.G.L.c. 260, §12.  The statute “provides that fraudulent concealment tolls the determination of ‘the time limited for commencement of the action.’”  Joslyn v. Chang, 445 Mass. 344, 347 (Mass. 2005) (quoting G.L.c. 260, §12).  The Massachusetts Supreme Judicial Court explained: “When a defendant fraudulently conceals a cause of action from the knowledge of a plaintiff, the statute of limitations is tolled under G.L.c. 260, § 12, for the period prior to the plaintiff’s discovery of the cause of action.”  Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 519 (1997).

Active fraud is generally required to constitute fraudulent concealment for purposes of tolling the applicable statute of limitations under G.L.c. 260, §12.  Stetson v. French, 72 N.E.2d 410, 412 (Mass. 1947).  However, mere failure to reveal information can also constitute fraudulent concealment by a person, such as a fiduciary, who has a legal duty to disclose.  Puritan Medical Center, Inc. v. Cashman, 596 N.E.2d 1004, 1010 (Mass. 1992).  Under Massachusetts law, the doctor-patient relationship is recognized as a fiduciary relationship.  Warsofsky v. Sherman, 326 Mass. 290, 292 (1950).  Accordingly, a doctor’s failure to disclose certain material information can, under the right set of facts, constitute fraudulent concealment sufficient to toll the statute of limitations.

[1] As a general matter for issues involving the computation of periods of time, “the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.”  Massachusetts Civil Procedure Rule 6(a).

III.  Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or is deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Massachusetts

Massachusetts law contains a statute of repose that governs medical malpractice claims.  It is found in the same statute that sets forth the statute of limitations applicable to medical malpractice claims, i.e., G.L.c. 260, §4.  It subjects medical malpractice claims in Massachusetts to a seven-year statute of repose.  The provision states, in pertinent part, “but in no event shall any such action be commenced more than seven years after the occurrence of the act or omission which is the alleged cause of the injury upon which such action is based….”  G.L.c. 260, §4.

To be absolutely clear as to the proper characterization of the foregoing language in the statute, the Massachusetts Supreme Judicial Court confirmed “[t]his language constitutes a statute of repose.”  Joslyn v. Chang, 445 Mass. 344, 347 (2005).  The Supreme Judicial Court described a statute of repose as follows:

A statute of repose … “completely eliminates a cause of action” after the time period established has run without regard to the concept of accrual or of discovery.  The period in a statute of repose generally begins to run from some “definitely established event,” such as the date on which the act or omission which forms the basis of the cause of action occurs.  The effect of a statute of repose is to place an absolute time limit on the liability of those within its protection and to abolish a plaintiff’s cause of action thereafter, even if the plaintiff’s injury does not occur, or is not discovered, until after the statute’s time limit has expired.  McGuinness v. Cotter, 412 Mass. 617, 622 (1992) (internal citations omitted).

The Supreme Judicial Court acknowledged “that statutes of repose are harsh….”  Nett v. Bellucci, 437 Mass. 630, 647 (2002).  “Unlike statutes of limitation, statutes of repose may not be ‘tolled’ for any reason, as ‘tolling’ would deprive the defendant of the certainty of the repose deadline and thereby defeat the purpose of a statute of repose.”  Id. at 635.The Court added that “statutes of repose are not subject to any form of equitable tolling, except as specifically provided by the statute.”  Joslyn, 445 Mass. at 350.

In Joslyn, the plaintiffs argued that the statute of repose should not bar their claim because the defendants fraudulently concealed their cause of action.  The plaintiffs presented evidence that their failure to commence an action prior to the expiration of the repose period “was induced by misleading assertions and omissions of the defendants.”Id. at 345.  Whether the defendants’ conduct amounted to fraudulent concealment was immaterial according to the Court.  Id.  The statute of repose is not tolled by a defendant’s fraudulent concealment, so whether the defendants in Joslyn engaged in fraud had no bearing on the determination that the plaintiffs’ claim was time-barred by the statute of repose.Id. at 345, 350.

There is only one exception to the statute of repose contained in G.L.c. 260, §4, and that exception is provided for in the statute itself.  The statute of repose will not bar a medical malpractice claim “where the action is based upon the leaving of a foreign object in the body.”  G.L.c. 260, §4.  The Supreme Judicial Court noted that “the Legislature allowed only one exception to the statute of repose, that pertaining to action arising from a foreign object left in the body.”  Joslyn, 445 Mass. at 350.  “The fact that the Legislature specified one exception … strengthens the inference that no other exception was intended.”  Id. (quoting LaBranche v. A.J. Lane & Co., 404 Mass. 725, 729 (1989)).

The Court reiterated that there are no exceptions to the statute of repose except for the one articulated in the statute itself.  Id. at 352.  No other exceptions are to be made, “and if there are any inconveniences or hardships growing out of such a construction, it is for the legislature, which is fully competent for that purpose, and not for the court, to apply the proper remedy.”  Id.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Massachusetts

The doctrine of sovereign immunity has been abolished in Massachusetts and replaced with the statutory scheme embodied in the Massachusetts Tort Claims Act, G.L.c. 258, that governs tort actions against the government.  The Massachusetts Supreme Judicial Court made this point clear in Morrissey v. New England Deaconess Association—Abundant Life Communities, Inc., 458 Mass. 580, 590 (2010), in which the Court stated that the enabling legislation of the Act expresses “a clear legislative intent to abolish the common-law doctrine of governmental immunity, and to replace it with a comprehensive statutory scheme that would govern the liability of public employers in tort actions….”  The Tort Claims Act sets forth detailed rules and procedures for bringing an action against the government.G.L.c 258, §§2-14.

The Tort Claims Act allows injured parties to sue the state government for negligence.  G.L.c. 258, §2.  It provides that “[p]ublic employers shall be liable for … personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances….”  Public employers are not liable for interest prior to judgment, punitive damages, or any amount in excess of $100,000.  Id.The terms ‘public employee’ and ‘public employer’ are defined in G.L.c. 258, §1.

Under the Act, a public employee in his or her personal capacityis not “liable for any … personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment….”G.L.c. 258, §2.  Accordingly, the proper party to sue when a government actor is involved in causing injury is the government entity, not a public employee thereof in his or her personal capacity.

In order to institute a civil action against a public employer, the plaintiff must first present a written claim[1] to the public employer within two years after the date upon which the cause of action arose.  G.L.c 258, §4.  Presentment of the claim on a timely basis as required by the statute is a condition precedent to bringing suit under the Tort Claims Act.  Spring v. Geriatric Authority of Holyoke, 394 Mass. 274, 283 (1985).  If the claim is denied or the defendant fails to settle, arbitrate, or compromise the claim within six months, only then may the plaintiff file suit under G.L.c. 231, §4.  Id.A civil action must be brought within “three years after the date upon which such cause of action accrued….”  G.L.c 258, §4.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Massachusetts

Good Samaritan Law for Non-Healthcare Providers

Massachusetts has two individual statutes that shield particular types of Good Samaritans from civil liability.  There is a general Good Samaritan law that covers members of the general public.  It is contained in G.L.c. 112, §12V and states:

Any person who, in good faith, attempts to render emergency care including, but not limited to, cardiopulmonary resuscitation or defibrillation, and does so without compensation, shall not be liable for acts or omissions, other than gross negligence or willful or wanton misconduct, resulting from the attempt to render such emergency care.

Under the statute, Good Samaritans are immune from liability as long as the emergency care is rendered without compensation and without gross negligence or willful or wanton misconduct.  Back in 1919, the Massachusetts Supreme Judicial Court attempted to define the term ‘gross negligence,’ and that definition provided by the Court continues to be used by courts in the state.  Altman v. Aronson, 231 Mass. 588, 591 (1919).  The Altman Court defined the term, in pertinent part, as follows:

Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances….

Gross negligence is substantially and appreciable higher in magnitude than ordinary negligence.  It is materially more want of care than constitutes simple inadvertence.  It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.  It is very great negligence, or the absence of slight diligence, or the want of even scant care….

The Massachusetts Supreme Judicial Court acknowledged that defining wanton conduct “so as to distinguish it clearly from negligence and gross negligence is not easy.”  Commonwealth v. Welansky, 316 Mass. 383, 397 (1944).  The term ‘willful’ means intentional, and when it is used in conjunction with the term ‘wanton,’ what “must be intended is the conduct, not the resulting harm.”  Id. at 398.  “The essence of [willful or] wanton … conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.”  Id.

The Supreme Judicial Court noted that it “has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and [willful] or wanton … conduct on the other.”  Id. at 400.  “It must now be taken as fully settled in this Commonwealth that negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other.”  Miller v. United State Fidelity Guaranty Co., 291 Mass. 445, 447 (1935).

Good Samaritan Law for Healthcare Providers

There is also a Good Samaritan law that specifically covers certain types of healthcare providers, viz., licensed doctors, physician assistants, and nurses.  It is contained in G.L.c. 112, §12B and states that no healthcare provider covered by the statute:

who, in good faith, as a volunteer and without fee, renders emergency care or treatment, other than in the ordinary course of his practice, shall be liable in a suit for damages as a result of his acts or omissions, nor shall he be liable to a hospital for its expenses if, under such emergency conditions, he orders a person hospitalized or causes his admission.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Massachusetts General Laws.

With the possible exception of sovereign immunity, the one most likely to be encountered by medical malpractice plaintiffs is charitable immunity since many hospitals and other healthcare facilities in the state operate as charitable entities.  Massachusetts has a charitable cap statute, G.L.c. 231, §85K, that limits civil liability in tort actions of charitable entities to $20,000 in general and $100,000 specifically for medical malpractice claims.

In 2003, the Massachusetts Supreme Judicial Court established a two-part test for an entity claiming protection under the charitable immunity damage cap.  Conners v. Northeast Hospital Corporation, 439 Mass. 469, 474, 477(2003).  A defendant entity seeking to invoke the protection of the charitable cap must establish that (1) it is a charity and (2) the tort committed occurred in the course of any activity carried on to accomplish directly the charitable purposes of such entity.  Id. at 474, 477.

[1] The Attorney General of Massachusetts publishes guidance for the public on how to file a claim against the Commonwealth as well as a Presentment Claim Form on its Official Website located at:

http://www.mass.gov/ago/government-resources/cafa-and-claims.html.

V. 182-Day Notice of Intent

A plaintiff is required to give written notice to the defendant healthcare provider of an intent to file suit 182 days prior to commencing a medical malpractice action.  G.L.c. 231, §60L(a).  The Notice must contain a statement including, but not limited to, the following:

  1. the factual basis for the claim;
  1. the applicable standard of care alleged by the claimant;
  1. the manner in which it is claimed that the applicable standard of care was breached by the healthcare provider;
  1. the alleged action that should have been taken to achieve compliance with the alleged standard of care;
  1. the manner in which it is alleged the breach of the standard of care was the proximate cause of the injury claimed in the notice; and
  1. the names of all healthcare providers that the claimant intends to notify in connection with the claim.L.c. 231, §60L(e).

Within 56 days of providing the Notice, the plaintiff must allow the recipient of the Notice “access to all of the medical records related to the claim that are in the claimant’s control and shall furnish a release for any medical records related to the claim that are not in the claimant’s control, but of which the claimant has knowledge.”  G.L.c. 231, §60L(f).

Within 150 days after receipt of the Notice, the recipient is required to furnish a written response to the plaintiff that contains a statement including the following:

  1. the factual basis for the defense, if any, to the claim;
  1. the standard of care that the healthcare provider claims to be applicable to the action;
  1. the manner in which it is claimed by the healthcare provider that there was or was not compliance with the applicable standard of care; and
  1. the manner in which the healthcare provider contends that the alleged negligence of the healthcare provider was or was not a proximate cause of the claimant’s alleged injury or alleged damage. L.c. 231, §60L(g).

The plaintiff is not required to wait until after the 182-notice period has expired to commence an action if the defendant healthcare provider furnishes written notice that the defendant does not intend to settle the claim within the applicable notice period.  G.L.c. 231, §60L(i).

The statute provides three exceptions to the 182-day notice period.  First, the Notice is not “required if the claimant did not identify and could not reasonably have identified a health care provider to which notice shall be sent as a potential party to the action before filing the complaint.”  G.L.c. 231, §60L(d).  Next, the Notice is not required when: A lawsuit against a health care provider filed within 6 months of the statute of limitations expiring as to any claimant, or within 1 year of the statute of repose expiring as to any claimant, shall be exempt from compliance with this section.”  G.L.c. 231, §60L(j).

Finally, the notice period is shortened to 90 days if:

  1. the plaintiff has previously filed the 182-notice required against another healthcare provider involved in the claim; or
  1. the plaintiff has filed a complaint and commenced an action alleging medical malpractice against any healthcare provider involved in the claim. L.c. 231, §60L(c).

The statute itself does not indicate the consequences, if any, of not complying with the Notice requirement.  The Appeals Court of Massachusetts addressed the issue in the 2016 case Arsenault v. Bhattacharya, 55 N.E.3d 972, 974 (Mass. App. Ct. 2016), in which it noted that the “statute is silent as to the remedies for a failure to comply with its terms, and there are no decisions interpreting it.”  The Court ruled that dismissal of a claim without prejudice is not the appropriate remedy for failure to comply with the 182-day notice provision.  Id.

The Court concluded that the Legislature decided not to impose a penalty for noncompliance with the Notice statute and that the statute is not intended to unreasonably obstruct the prosecution of meritorious medical malpractice claims.  Id. at 978.  The Court opined that there are “less Draconian consequences than dismissal” available.  Id. at 974.  It reversed the lower court decision to dismiss the plaintiff’s claim and remanded the case back to the lower court “in order to allow the plaintiff to amend the complaint to address the notice requirement of G.L. c. 231, § 60L, and as so amended that complaint shall be deemed as having satisfied § 60L’s notice requirement and as being timely filed.”Id. at 978.

VI. Required Elements of a Medical Malpractice Complaint

A medical malpractice action is commenced by (1) mailing to the clerk of the proper court by certified or registered mail a complaint along with the applicable fee or (2) filing such complaint and fee in person with the clerk.  Rule 3 of the Massachusetts Rules of Civil Procedure.  Complaints are one of the authorized forms of pleadings allowed in civil actions in Massachusetts courts.  Rule 7(a).  A complaint is described as follows[1]:

A complaint is not a specific form. It is a document that contains a short statement of the facts showing your claim and why you are entitled to relief and a demand for judgment granting that relief. While the courts have forms that can be used as complaints for some types of actions, such as divorce, in general you have to draft the complaint yourself….

While there are a few formalities that must be met, there are not any “magic words” required for a complaint. The rules provide you with a great degree of flexibility to tell your story in your complaint. The requirements of the rules are met so long as the complaint gives the defendant “fair notice of what the plaintiff’s claims are and the grounds on which they rest.”Mmoe v. Commonwealth, 393 Mass. 617, 621 (1985).

In general, a complaint has six elements: caption, parties, statement of facts, statement of claims, request for relief, and jury demand. The substantive information in the complaint (everything other than the caption) must be formatted in numbered paragraphs, with each paragraph containing a separate complete thought or set of circumstances, as required by Rule 10(b).

Some courts require that you include additional forms with the complaint.

A complaint must contain a caption setting forth the name of the court, the county, the title of the action, the docket number, and a designation that it is a ‘complaint.’  Rule 10(a).  The title must include the names of all the parties to the action.  Id.  All statements of claim must be made in numbered paragraphs, and the contents of each must be limited, as far as practicable, to a statement of a single set of circumstances.  Rule 10(b).

In setting forth a claim for relief, the complaint must contain (1) a short and plain statement of the claim showing that the plaintiff is entitled to relief and (2) a demand for judgment for the relief to which the plaintiff deems himself or herself entitled.  Rule 8(a).  Relief in the alternative or of several different types may be demanded.  Id.A medical malpractice complaint against a healthcare provider may not contain an ad damnum or monetary amount claimed against the defendant, i.e., a specific amount being sought cannot be stated in the complaint.  G.L.c. 231, §60(C).

In general, each statement or allegation in the complaint must be simple, concise, and direct.  Rule 8(e)(1).  The plaintiff may provide two or more statements of a claim alternatively or hypothetically, either in one count or in separate counts.  Rule 8(e)(2).  The plaintiff may state as many separate claims as he or she has regardless of consistency.  Id.  Complaints shall be construed so as to do substantial justice.  Rule 8(f).

[1] Excerpt from The Official Website of the Massachusetts Judicial Branch, Massachusetts Court System, “Drafting a Complaint in Massachusetts” webpage.

Available at: http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/complaint.html.

VII. Medical Malpractice Tribunal

Every medical malpractice action filed in Massachusetts after January 1, 1976 is subject to a preliminary hearing by a medical malpractice tribunal in accordance with G.L.c. 231, §60B.  The statute states that “[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth … and an attorney authorized to practice law in the commonwealth….”  G.L.c. 231, §60B.

The statute does not define what constitutes an “action for malpractice, error or mistake.”  In the absence of a statutory definition, the Massachusetts Supreme Judicial Court concluded that the phrase broadly encompasses all treatment-related claims.  Vasa v. Compass Medical, P.C., 456 Mass. 175, 177 (2010).  Under the Court’s interpretation, “the statute is not limited to cases alleging that a health care provider’s treatment fell below the required standard of care.”  Id.

The Supreme Judicial Court observed that the purpose of the medical malpractice tribunal statute is to “ensure the continued availability of medical malpractice insurance at a reasonable cost.”  Paro v. Longwood Hospital, 373 Mass. 645, 647 (1977).  In keeping with that purpose, the screening process is designed to discourage frivolous claims whose defense would have the effect of increasing malpractice insurance premiums.  Vasa, 456 Mass. at 178.  The malpractice tribunal accomplishes the intended goal by reviewing claims to decide whether there is sufficient evidence for it to proceed.  Id.

The tribunal physician must represent the field of medicine in which the alleged injury occurred.G.L.c. 231, §60B.  If the defendant is not a physician, “the physician’s position on the tribunal shall be replaced by a representative of that field of medicine in which the alleged tort” occurred.Id. In cases where more than one field of healthcare is represented by the defendants, “the superior court justice shall determine in his discretion who shall represent the health care field on the tribunal.”  Id.

The tribunal is required to hear the malpractice claim within 15 days after the defendant’s answer has been filed.  G.L.c. 231, §60B. At the hearing, the plaintiff “shall present an offer of proof and said tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.”  Id. The statute sets forth detailed rules and procedures for the tribunal hearing such as standards of proof and admissibility of evidence.  The tribunal is empowered to appoint an expert to examine the plaintiff or relevant evidence.  Id.

If the tribunal finds in favor of the defendant or defendants, “the plaintiff may pursue the claim through the usual judicial process only upon filing a” $6,000 cash bond payable to the defendant or defendants for costs and fees in the event the plaintiff does not prevail in the final judgment.  G.L.c. 231, §60B.  The amount of the bond may be increased or decreased upon a finding that the plaintiff is indigent at the discretion of the justice serving on the tribunal.  Id.  If the required bond is not posted within 30 days of the tribunal’s finding, “the action shall be dismissed.”  Id.The Massachusetts Supreme Judicial Court confirmed that the consequence of failing to file a bond on a timely basis as required by the statute is dismissal of the action.  Austin v. Boston University Hospital, 372 Mass. 654, 661 (1977).

VIII. Medical Expert Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Qualifying as Expert Medical Witness inMassachusetts

Massachusetts medical malpractice law generally requires the use of expert medical witness testimony to establish the applicable standard of care, breach thereof, and causation between the negligence and the injury.  Haggerty v. McCarthy, 344 Mass. 136, 139 (1962).  The Massachusetts Supreme Judicial Court pointed out that “expert testimony is particularly important in a medical malpractice action because expert testimony is almost always required, and it is often the central feature of the case.” [emphasis in original] Kace v. Liang, 472 Mass. 630, 637 (2015).  Accordingly, plaintiffs “must establish by expert testimony the average degree of care and skill exercised by qualified practitioners in comparable circumstances, and the fact that defendants deviated from such standards.”  Rogers v. Okin, 478 F.Supp. 1342, 1385 (D.Mass. 1979) (applying Massachusetts law).

Before expert testimony may be admitted in a case, the trial court must first determine whether the expert providing the intended testimony is qualified to do so, and in making that determination, the court “has wide discretion in qualifying a witness to offer an expert opinion on a particular question….”  Commonwealth v. Mahoney, 406 Mass. 843, 852 (1992).  In fact, the trial court’s ruling on whether an expert witness is qualified so that his or her opinion testimony is admissible “will be reversed on appeal only if it constituted an abuse of discretion or was otherwise tainted with error of law.”  Commonwealth v. Devlin, 365 Mass. 149, 152 (1974).

In determining whether an expert is qualified to provide the intended opinion testimony, the “crucial issue is whether the witness has sufficient ‘education, training, experience and familiarity’ with the subject matter of the testimony.”  Letch v. Daniels, 401 Mass. 65, 68 (1987) (quoting Gill v. North Shore Radiological Associates, 10 Mass.App.Ct. 885, 886 (Mass. App. Ct. 1980)).Relevant factors to consider when determining whether an expert witness is qualified to provide testimony about the applicable standard of care include the expert’s training, board certification, specialized medical experience, attendance at seminars and meetings, familiarity with medical literature, and discussions with other physicians.  Palandjian v. Foster, 446 Mass. 100, 106 (2006).  The Massachusetts Supreme Judicial Court explained: “Such qualifications ensure that the expert has sufficient knowledge of the practices of other physicians to assert that the average qualified practitioner would, or would not, take a particular course of action in the relevant circumstances.”  Id.

Under the standards set forth to qualify as an expert medical witness by the Massachusetts Supreme Judicial Court, a “medical expert need not be a specialist in the area concerned nor be practicing in the same field as the defendant.”  Letch, 401 Mass. at 68.The Supreme Judicial Court stated the basic rule governing the expert witness qualification determination as follows:

It is well established that the professional specialty of a medical practitioner offered as a witness need not be precisely and narrowly related to the medical issues of the case. Thus, it has been held that a judge, in his discretion, properly admitted the opinions of a general practitioner in a case which related to specialized medical issues.  Id. (quoting Kapp v. Ballantine, 380 Mass. 186, 192-193, fn. 7 (1980)).

The case law on the issue clearly reveals that the essential factors in whether an expert witness is deemed qualified to provide opinion testimony is the witness’ “education, training, experience and familiarity” with the subject matter of the testimony, not the particular degrees, certifications, or titles the witness possesses.  The Letch Court approvinglycited several cases in support of the principle that it is unnecessary for a plaintiff’s medical expert to be a specialist in the area concerned.  Id.

Similarly, an expert medical witness need not practice in the same practice area or specialty as the defendant.  In Letch, the Court reversed the trial court’s ruling that the proposed expert witness in the case, an orthodontist, was not qualified to provided standard of care testimony against the defendant pedodontist. Id.at 70.  The Court stated that it was error for the trial judge to exclude the expert’s testimony regarding the appropriate standard of care solely on the basis that he was not a pedodontist.  Id. at 66.  The Court then observed that the expert’s testimony “was particularly appropriate here, since his expertise was in the very field at issue” regardless of whether he was a pedodontist like the defendant.  Id. at 69.  Finally, the Court instructed that the expert’s “training and experience as an orthodontist, rather than a pedodontist, goes to the weight accorded his testimony but not to its admissibility.”  Id.

Once an expert is deemed qualified to provide opinion testimony by the trial court, questions about an expert witness’ education, training, experience, and overall credentials go to the credibility and weight given to the opinion testimony by the trier of fact, not to admissibility itself.  Id. at 69.  According to the Massachusetts Supreme Judicial Court, in assessing the credibility of expert witnesses offered by any party to a case:

the [fact finder’s] function, vis-à-vis an expert witness, is to access the soundness and credibility of [the expert’s] opinions.  The [fact finder] is entitled to discount, or disbelieve, the expert’s testimony.  One factor in assessing the strength of expert testimony is the expert’s knowledge and experience.  A [fact finder] may properly evaluate that knowledge and experience in deciding what weight to give the opinion when reaching a final decision.Leibovich v. Antonellis, 410 Mass. 568, 573 (1991) (internal citations omitted).

IX. Modified Comparative Negligence

Massachusetts follows the doctrine of modified comparative negligence with a 51% bar rule.G.L.c. 231, §85.  The statute provides that the plaintiff’s “[c]ontributory negligence shall not bar recovery … if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought….”  As long as the plaintiff’s assigned percentage of fault in causing his or her own injury is equal to or less than the defendant’s or defendants’ percentage share of fault, the plaintiff may recover damages.  The Massachusetts Supreme Judicial Court made note of the implicit 51% bar rule in the statute, stating: “Only if the plaintiff is found to be fifty-one percent negligent will his recovery be barred.”  Zeller v. Cantu, 395 Mass. 76, 79 (1985).

Under the statute, the plaintiff is presumed to have been exercising due care, so the defendant has the burden of alleging and proving that the plaintiff was negligent.  G.L.c. 231, §85.

Modified comparative negligence is a fault and damages allocation system.  Under this system, negligence is determined and apportioned among the parties involved (plaintiff and all defendants), and how much compensation the plaintiff may recover is limited by his or her relative share of negligence for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of negligence.  G.L.c. 231, §85 requires that “any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person whose injury, damage, or death recovery is made.”  The statute adds: “The combined total of the plaintiff’s negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.”

The 51% bar rule means that if the plaintiff’s allocated percentage of negligence is 51% or greater he or she is completely barred from recovering any damages.For example, assume a plaintiff is determined to be 50% negligent, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of negligence, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% negligent, he or she would not be entitled to any recovery because Massachusetts imposes the 51% bar rule.

It is the role of the trier of fact to determine and apportion the percentage of negligence among the parties in a case.  Zeller, 395 Mass. 79.  The Massachusetts Supreme Judicial Court instructed “the trier of fact must focus on the conduct of both the defendant and the plaintiff in determining the extent of each party’s responsibility for the plaintiff’s injuries.”  Colter v. Barber-Greene Company, 403 Mass. 50, 63 (1988).

X. Limitations on Non-economic Damages

Massachusetts law imposes a $500,000 limit on the amount of non-economic damages that can be recovered in medical malpractice cases.G.L.c. 231, §60H.  The statute states that “the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages….” Massachusetts’ statute is slightly different than those in other states that also cap non-economic damages in that it expressly directs the trial court to advise the jury of the damage cap; whereas, other states’ damage cap statute typically forbids the lawyers or court from notifying the jury about any applicable limitation on damages[1].

There is a special rule for cases in which there are multiple plaintiffs recovering damages from a single occurrence, transaction, act of malpractice, or injury.  In such cases, “the amount of such damages recoverable by each plaintiff will be reduced to a percentage of five hundred thousand dollars proportionate to that plaintiff’s share of the total amount of such damages for all plaintiffs.”  Id.The damage cap applies regardless of how many defendants are found liable for damages.  Id.

Under the statute, there is an exception to the $500,000 limit on non-economic damages.  The damage cap does not apply to cases in which the “jury determines that there is a substantial or permanent loss or impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.”  G.L.c. 231, §60H.

In medical malpractice cases where damages are awarded, the jury is required to identify with great specificity the precise amount attributed to economic and non-economic damages included in the total award.  G.L.c. 231, §60F(a).  The statute requires the jury to specify the particular elements within the general grant of economic and non-economic damages upon which the award is based.  Id.Furthermore, the jury is required to itemize the various amounts that are intended to compensate for damages incurred prior to the verdict and those amounts intended to compensate for damages to be incurred in the future.  Id.“In itemizing amounts intended to compensate for future damages, the jury shall set forth the period of weeks, months or years over which such amounts are intended to provide compensation.”  Id.

[1] For example, in Michigan, MCL §600.6304(5) states the “jury shall not be advised by the court or by counsel for either party of the limitations set forth in section 1483 or any other provision of section 1483.”  MCL §600.1483 sets forth the limitation on non-economic damages in medical malpractice cases.

XI. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Massachusetts

Contingent fee agreements are specifically permitted by statute in Massachusetts medical malpractice cases.  G.L.c. 231, §60I.  In fact, the Massachusetts Supreme Judicial Court has approvingly noted the important function they serve in the administration of justice, observing that such agreements are often referred to as the “poor man’s key to the courthouse” because they allow those individuals who could not otherwise afford the assistance of counsel the means of hiring a lawyer to pursue their civil claim.  Gagnon v. Shoblom, 409 Mass. 63, 70 (1991).

Nevertheless, Massachusetts imposes important limitations on attorney fees in medical malpractice cases.  Contingent fees are capped by statute.  G.L.c. 231, §60I provides that attorneys representing plaintiffs in medical malpractice cases “shall not contract for or collect a contingent fee … in excess of the following limits:”

  1. 40% of the first $150,000 recovered;
  1. 331/3% of the next $150,000 recovered;
  1. 30% of the next $200,000 recovered; and
  1. 25% of any amount of a recovery in excess of $500,000.

The fee caps “apply regardless of whether the recovery is by settlement, arbitration or judgement.”  G.L.c. 231, §60I.  Of course, attorneys are free to enter into a contingent fee agreement at rates lower than the statutory caps.  Id.  Additionally, the statute makes it clear that courts may assess reasonable attorney fees at any amount below the caps or determine that attorney fees below the cap amounts “are unreasonably high in a particular case.”  Id.

The statute limiting attorney fees in medical malpractice cases also contains a very narrow limitation covering a specific situation, i.e., sufficient amount for the plaintiff to pay past unpaid and future medical expenses.   The formula for the limitation is as follows:

In the event that at the time of judgment following the deduction of the (1) attorney’s reasonable expenses, (2) disbursements for which the plaintiff is liable, and (3) fee otherwise payable to the attorney the trial court determines that the remaining amount recovered and payable to the plaintiff is less than the total of the plaintiff’s unpaid past and future medical expenses included in the recovery, the court is barred from upholding a contingent fee unless the (a) fee is 20% or less than the plaintiff’s recovery amount, (b) reduced to 20% or less than the plaintiff’s recovery amount, or (c) is reduced to a level that permits the plaintiff’s recovery to the amount of the unpaid past and future medical expenses included in the recovery.  G.L.c. 231, §60I.

Finally, in addition to the specific limitations governing contingent fee agreements in medical malpractice cases, attorney fees in general are governed by Rule 1.5 of the Massachusetts Rules of Professional Conduct.  Rule 1.5 states:

A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee or collect an unreasonable amount for expenses. The factors to be considered in determining whether a fee is clearly excessive include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  • whether the fee is fixed or contingent.

XII. Apologies and Sympathetic Gestures

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Massachusetts is among the states that has enacted an “I’m Sorry” law.  It is contained in G.L.c. 233, §79L and is specific to healthcare providers.  The statute shields healthcare providers who communicate benevolent gestures by making them inadmissible as evidence of liability in an action for medical malpractice.  G.L.c. 233, §79L(b) states:

In any claim, complaint or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, all statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error or a general sense of concern which are made by a health care provider, facility or an employee or agent of a health care provider or facility, to the patient, a relative of the patient or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence in any judicial or administrative proceeding….

However, if the healthcare provider, while questioned under oath, makes a contradictory or inconsistent statement about material facts or opinions, those statements are admissible.  Id.  The statute provides:

[If] the maker of the statement, or a defense expert witness, when questioned under oath during the litigation about facts and opinions regarding any mistakes or errors that occurred, makes a contradictory or inconsistent statement as to material facts or opinions, in which case the statements and opinions made about the mistake or error shall be admissible for all purposes.

G.L.c. 233, §79L(a) defines the terms ‘facility,’ ‘health care provider,’ and ‘unanticipated outcome’ as follows:

“Facility”, a hospital, clinic, or nursing home licensed under chapter 111, a psychiatric facility licensed under chapter 19 or a home health agency; provided, however, that “facility” shall also include any corporation, professional corporation, partnership, limited liability company, limited liability partnership, authority or other entity comprised of such facilities.

“Health care provider”, any of the following health care professionals licensed under chapter 112: a physician, podiatrist, physical therapist, occupational therapist, dentist, dental hygienist, optometrist, nurse, nurse practitioner, physician assistant, chiropractor, psychologist, independent clinical social worker, speech-language pathologist, audiologist, marriage and family therapist or mental health counselor; provided, however, that “health care provider” shall also include any corporation, professional corporation, partnership, limited liability company, limited liability partnership, authority, or other entity comprised of such health care providers.

“Unanticipated outcome”, the outcome of a medical treatment or procedure, whether or not resulting from an intentional act, that differs from an intended result of such medical treatment or procedure.

Finally, the statue requires healthcare providers to advise patients of unanticipated outcomes, providing “where a patient suffers an unanticipated outcome with significant medical complication resulting from the provider’s mistake, the health care provider, facility or an employee or agent of a health care provider or facility shall fully inform the patient and, when appropriate, the patient’s family, about said unanticipated outcome.”  G.L.c. 233, §79L(b).