It has been two years since Massachusetts implemented sweeping medical malpractice reform, which imposed new restrictions on plaintiffs and attorneys and forced them to wait out a “cooling-off” period before filing claims.
Massachusetts Lawyers Weekly recently interviewed some of Boston’s leading medical malpractice lawyers on the law and how it has changed their work. They shared criticism but acknowledged there have been a few benefits. Attorney Marc Breakstone of Breakstone, White & Gluck was interviewed. The article appeared in this week’s edition.
Under changes made to G.L. c. 231 §60L, plaintiffs became required to provide defendants with notice of intent to sue, then wait 150 days before filing a claim in court. This is meant to provide doctors and patients time to resolve a matter outside of court. During this time, doctors are now allowed to make apologies for medical mistakes. This has been one of the most controversial parts of the legislation. But these apologies are not admissible if a claim proceeds to court, unless a doctor makes a contradictory statement under oath.
While the legislation has brought challenges, Breakstone said doctors now have a space to explain to patients what happened during their care. Even if a doctor offers no apology, patients are often satisfied merely to receive an explanation of what happened and expressions of regret, he said.
“It is the betrayal that drives clients to lawyers in many cases,” said the Breakstone, White & Gluck partner. “And under the new statute that encourages disclosure, transparency and apology, I surmise there is less feeling of betrayal.”
Another change is some plaintiff’s attorneys are now sending their initial letters of notice to sue with letters from experts laying out their case.
Breakstone said that is because most lawyers will not accept a case until they can get that letter, and they are happy to provide it at the outset since the statute provides a structure for “systematic information exchange.”
“Before the statute … I would not even bother to put a potential defendant on notice of the claim,” he said. “I would just file the claim. To the extent this statute provides for forced exchange of information, one could say that’s a benefit.”