Arsenault v. Bhattacharya , 89 Mass. App. Ct. 804 ( 2016 )

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15-P-197 Appeals Court
PATRICIA ARSENAULT vs. SUBROTO BHATTACHARYA.
No. 15-P-197.
Essex. April 13, 2016. - August 3, 2016.
Present: Vuono, Meade, & Carhart, JJ.
Medical Malpractice. Notice, Timeliness. Practice, Civil,
Motion to dismiss.
Civil action commenced in the Superior Court Department on
October 21, 2013.
A motion to dismiss was heard by Robert A. Cornetta, J.,
and a motion for reconsideration was considered by him.
David Newton for the plaintiff.
Andrew F. Newton for the defendant.
CARHART, J. In this case, we must decide whether dismissal
without prejudice was the appropriate remedy for a failure by
the plaintiff, Patricia Arsenault, to provide notice to the
defendant, Subroto Bhattacharya, of her intention to sue, as
required by G. L. c. 231, § 60L. See St. 2012, c. 224, § 221
("An Act improving the quality of health care and reducing costs
2
through increased transparency, efficiency and innovation").
The statute is silent as to remedies for a failure to comply
with its terms, and there are no decisions interpreting it. See
Ashley v. New York State Office of Children & Family Servs., 33
F. Supp. 3d 76, 78 n.1 (D. Mass. 2014). For the reasons that
follow, we conclude that "less Draconian consequences than
dismissal" were available and should have been considered by the
judge. Paquette v. Department of Envtl. Protection, 55 Mass.
App. Ct. 844, 849 (2002). Consequently, we reverse the judgment
and remand the matter to Superior Court.
Background. 1. Section 60L. We begin with a brief
overview of G. L. c. 231, § 60L, set forth in full in the
margin.1 Pursuant to § 60L(a), a plaintiff must give written
1
General Laws c. 231, § 60L, inserted by St. 2012, c. 224,
§ 221, provides:
"(a) Except as otherwise provided in this section, a person
shall not commence an action against a provider of health care
as defined in the seventh paragraph of section 60B unless the
person has given the health care provider 182 days written
notice before the action is commenced.
"(b) The notice of intent to file a claim required under
subsection (a) shall be mailed to the last known professional
business address or residential address of the health care
provider who is the subject of the claim.
"(c) The 182-day notice period in subsection (a) shall be
shortened to 90 days if:
"(1) the claimant had previously filed the 182-day notice
required against another health care provider involved in
the claim; or
3
"(2) the claimant has filed a complaint and commenced an
action alleging medical malpractice against any health care
provider involved in the claim.
"(d) The 182 day notice of intent required in subsection
(a) shall not be 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;
"(e) The notice given to a health care provider under this
section shall contain, but shall not be limited to, a statement
including:
"(1) the factual basis for the claim;
"(2) the applicable standard of care alleged by the
claimant;
"(3) the manner in which it is claimed that the applicable
standard of care was breached by the health care provider;
"(4) the alleged action that should have been taken to
achieve compliance with the alleged standard of care;
"(5) 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
"(6) the names of all health care providers that the
claimant intends to notify under this section in relation
to a claim.
"(f) Not later than 56 days after giving notice under this
section, the claimant shall allow the health care provider
receiving 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. This subsection shall not restrict a
patient's right of access to the patient's medical records under
any other law.
"(g) Within 150 days after receipt of notice under this
section, the health care provider or authorized representative
4
against whom the claim is made shall furnish to the claimant or
the claimant's authorized representative a written response that
contains a statement including 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.
"(h) If the claimant does not receive the written response
required under subsection (g) within the required 150-day time
period, the claimant may commence an action alleging medical
malpractice upon the expiration of the 150-day time period. If
a provider fails to respond within 150 days and that fact is
made known to the court in the plaintiffs' complaint or by any
other means then interest on any judgment against that provider
shall accrue and be calculated from the date that the notice was
filed rather than the date that the suit is filed. At any time
before the expiration of the 150-day period, the claimant and
the provider may agree to an extension of the 150-day period.
"(i) If at any time during the applicable notice period
under this section a health care provider receiving notice under
this section informs the claimant in writing that the health
care provider does not intend to settle the claim within the
applicable notice period, the claimant may commence an action
alleging medical malpractice against the health care provider,
so long as the claim is not barred by the statutes of
limitations or repose.
"(j) A lawsuit against a health care provider filed within
[six] months of the statute of limitations expiring as to any
claimant, or within [one] year of the statute of repose expiring
as to any claimant, shall be exempt from compliance with this
section.
5
notice to a health care provider of an intent to file suit 182
days before commencing an action alleging medical malpractice.
Notice is not required if the plaintiff "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), or if the
plaintiff files suit "within [six] months of the statute of
limitations expiring . . . or within [one] year of the statute
of repose expiring as to any claimant." G. L. c. 231, § 60L(j).
Nothing in § 60L prohibits "the filing of suit at any time in
order to seek court orders to preserve and permit inspection of
tangible evidence." G. L. c. 231, § 60L(k). Section 60L, which
applies to actions filed pursuant to G. L. c. 231, § 60B,2 became
effective on November 4, 2012.
2. The complaint. Taking the allegations in the
plaintiff's complaint as true and drawing all reasonable
inferences in her favor, see Ryan v. Holie Donut, Inc., 82 Mass.
"(k) Nothing in this section shall prohibit the filing of
suit at any time in order to seek court orders to preserve and
permit inspection of tangible evidence."
2
General Laws c. 231, § 60B, first par., inserted by St.
1975, c. 362, § 5, established a tribunal to which plaintiffs
alleging medical malpractice must submit their complaints,
whereupon the 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."
6
App. Ct. 633, 635 (2012), the defendant was the plaintiff's
primary care physician when he began treating her in January,
2008, for carpal tunnel and cervical spondylosis with
radiculopathy.3 In August, 2008, the defendant administered a
cortisone injection to the plaintiff's left wrist. In March and
October 2009, the defendant injected both of the plaintiff's
wrists with cortisone, and on January 21, 2010, he administered
a final cortisone shot to the plaintiff's right wrist.
On February 1, 2010, the plaintiff met with a surgeon
because of a substantial tearing and popping feeling in her
right wrist. One week later she underwent surgery on her right
wrist. The plaintiff had further surgery on her right wrist in
May and June, 2010, and August, 2011, and had surgery on her
left wrist in June, 2010. On April 5, 2012, she underwent an
independent medical examination by another doctor who found that
she had "developed extensor tendon ruptures as a result of her
cortisone injections."4
In her complaint filed in Superior Court on October 21,
2013, the plaintiff alleges that the defendant knew or should
have known that giving her multiple cortisone shots would
increase the risk of rupture to her wrists, especially in light
3
The complaint does not define cervical spondylosis or
radiculopathy.
4
That examination was done in connection with the
plaintiff's workers' compensation claim.
7
of a letter dated August 1, 2012, that he prepared in connection
with the plaintiff's workers' compensation claim. That letter
states that "[b]ecause of previous cortisone shots there is a
significant risk of tendon rupture of the left side still." The
plaintiff alleges that the defendant deviated from the
appropriate standard of medical care when he negligently gave
her the cortisone shots, which caused a double rupture of her
right wrist and resulted in her being totally and permanently
disabled.
3. Procedural posture. After return of service was
docketed on January 28, 2014, the defendant moved pursuant to
Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss on the
basis that the action was barred by the statute of limitations
and by the plaintiff's failure to provide notice pursuant to
§ 60L. After a hearing, the motion judge, a District Court
judge sitting by designation in the Superior Court, found that
the plaintiff's cause of action accrued on April 5, 2012, and
that the complaint was filed "within the 3 year statute of
limitations but before the 6 months notice required and 7 years
statute of repose and dates of [§ 60L]." The judge allowed the
defendant's motion without prejudice and judgment entered on
June 26, 2014. The plaintiff appealed.5,6 Rather than refiling,
5
Although dismissal without prejudice is not an
adjudication on the merits, see Ogens v. Northern Industrial
8
the plaintiff moved for reconsideration on July 21, 2014,
stating that she satisfied § 60L by sending a letter of intent
to defendant's counsel on or about March 4, 2014. The motion
for reconsideration was denied.
Chem. Co., 304 Mass. 401, 402-403 (1939), and the better
practice would have been for the plaintiff to refile the
complaint, the judgment in this case is appealable. See ibid.
(reviewing appeal of decree that dismissed bill without
prejudice); Department of Rev. v. Mason M., 439 Mass. 665, 674
(2003) (reviewing appeal of complaint that was dismissed without
prejudice). The judgment is not interlocutory in nature because
it dismissed the complaint in its entirety, see Gibbs Ford, Inc.
v. United Truck Leasing Corp., 399 Mass. 8, 9 (1987), and the
statute of limitations on the plaintiff's claim expired on April
5, 2015. See G. L. c. 260, § 4; Russia Cement Co. v. Le Page
Co., 174 Mass. 349, 354 (1899) (judgment of dismissal, "if not
reversed or modified, will end the litigation in which it [was]
entered"). The plaintiff therefore has "the right to invoke the
action of the higher court." Ibid. See G. L. c. 231, § 113,
inserted by St. 1973, c. 1114, § 202 ("A party aggrieved by a
final judgment of the superior court . . . may appeal therefrom
to the appeals court").
6
While the docket reflects that the defendant filed a
notice of appeal on the same day that judgment entered and does
not reflect the filing of a notice of appeal by the plaintiff,
the plaintiff's notice of appeal appears in the record and is
dated June 23, 2014. Given that a notice of appeal by the
defendant is not in the record, we assume that the docket entry
reflects clerical error, and we resolve the issue in favor of
preserving the plaintiff's appellate rights. See Standard
Register Co. v. Bolton-Emerson, Inc., 35 Mass. App. Ct. 570, 574
(1993); Eyster v. Pechenik, 71 Mass. App. Ct. 773, 782 (2008).
Since the plaintiff's motion for reconsideration was served on
the defendant on July 16, 2014, more than ten days after entry
of the judgment, it is treated as one under Mass.R.Civ.P. 60(b),
365 Mass. 828 (1974), see Gifford v. Westwood Lodge Corp., 24
Mass. App. Ct. 920, 922 (1987), and, as such, a new notice of
appeal was not required. See Selby Assocs. v. Boston Redev.
Authy., 27 Mass. App. Ct. 1188, 1189-1190 (1989); Curly Customs,
Inc. v. Pioneer Financial, 62 Mass. App. Ct. 92, 96-97 (2004).
9
Discussion. A motion to dismiss under Mass.R.Civ.P.
12(b)(6) "is concerned with the sufficiency of the pleadings."
Bayless v. TTS Trio Corp., 474 Mass. 215, 223 (2016). "To
survive a motion to dismiss, the facts alleged and the
reasonable inferences drawn therefrom must 'plausibly suggest
. . . an entitlement to relief.'" Coghlin Elec. Contractors,
Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 554 (2015), quoting
from Flagg v. AliMed, Inc., 466 Mass. 23, 26-27 (2013). "A
court may grant the radical relief of dismissal only if the
plaintiff can set forth no set of facts which would entitle her
to relief." Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass.
145, 147 (1993). "Dismissals on the basis of pleadings, before
facts have been found, are discouraged." Fabrizio v. Quincy, 9
Mass. App. Ct. 733, 734 (1980). We review de novo the judge's
allowance of the motion to dismiss. See Ryan, 82 Mass. App. Ct.
at 635.
The defendant argues that dismissal of the complaint was
proper because, like the demand letter required by G. L. c. 93A,
§ 9(3), notice pursuant to § 60L(a) is a prerequisite to the
plaintiff's medical malpractice suit. A complaint for medical
malpractice must allege that "a doctor-patient relationship
existed . . . , that [the defendant's] performance did not
conform to good medical practice, and that injury to the
plaintiff resulted therefrom." St. Germain v. Pfeifer, 418
10
Mass. 511, 519 (1994). Here, all of those allegations appear in
the complaint. Because "the Legislature has given no explicit
guidance on the point" whether the notice provision in § 60L(a)
is an element of a medical malpractice claim, Austin v. Boston
Univ. Hosp., 372 Mass. 654, 657 (1977), "we [must] interpret the
provision 'in the context of the over-all objective the
Legislature sought to accomplish.'" Sellers's Case, 452 Mass.
804, 810 (2008), quoting from National Lumber Co. v. LeFrancois
Constr. Corp., 430 Mass. 663, 667 (2000).
Section 60L is applicable to actions filed under G. L.
c. 231, § 60B. Like § 60L, § 60B was enacted "[a]s a means to
the end of keeping medical malpractice insurance premiums in
check . . . [and] discourag[ing] frivolous medical malpractice
claims." LaFond v. Casey, 43 Mass. App. Ct. 233, 235 (1997).
Section 60B "impos[es] liability for legal costs and expenses on
an unsuccessful litigant," Austin, supra, in the form of a bond
the plaintiff must post in a judicial proceeding, within thirty
days of an adverse decision by the medical malpractice tribunal,
or "the action shall be dismissed." G. L. c. 231, § 60B, sixth
par., inserted by St. 1975, c. 362, § 5. Section 60B therefore
"contains an element of substance, and not merely procedure."
Austin, supra.
Similarly, c. 93A "create[d] new substantive rights and
provide[d] new procedural devices for the enforcement of those
11
rights." Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693
(1975). One procedural device is the requirement of a letter
notifying a prospective defendant of the plaintiff's allegations
and of the relief sought. See G. L. c. 93A, § 9(3). "The
purposes of the letter are twofold: (1) 'to encourage
negotiation and settlement by notifying prospective defendants
of claims arising from allegedly unlawful conduct' and (2) 'to
operate as a control on the amount of damages which the
complainant can ultimately recover,'" because c. 93A allows for
awards of attorney's fees and damages that may be doubled or
trebled if a defendant fails to make "a reasonable tender of
settlement" in response to the letter. Spring v. Geriatric
Authy. of Holyoke, 394 Mass. 274, 288 (1985), quoting from
Slaney, supra at 704.
By contrast, and as the defendant recognizes, § 60L does
not "create new substantive rights." Slaney, supra at 693.
Section 60L(h) -- the only part of the statute that sets forth
any kind of penalty -- deals with "a matter of procedure or
practice in no way affecting the substantive rights of the
parties," because it governs the accrual date for the purposes
of calculating prejudgment interest. D'Amico v. Cariglia, 330
Mass. 246, 249 (1953). Thus, while the Legislature used the
words "shall not commence" in § 60L(a), and "[t]he word 'shall'
is ordinarily interpreted as having a mandatory or imperative
12
obligation," Hashimi v. Kalil, 388 Mass. 607, 609 (1983), we are
persuaded by the Legislature's omission of § 60B's "mandatory
dismissal language," Croteau v. Swansea Lounge, Inc., 402 Mass.
419, 422 (1988), from a statute governing actions under § 60B,
that the Legislature did not intend notice under § 60L(a) to be
a "special element[] which must be alleged." Slaney, supra at
704. As such, the complaint should not have been dismissed.7
See id. at 705 ("a demurrer cannot be upheld where the
plaintiff's bill sets out any cause of suit").
We recognize that § 60L sets forth specific exemptions from
the notice requirement that do not apply to the plaintiff, and
that "where there is an express exception in a statute, it
comprises the only limit on the operation of the statute and no
others will be implied." Thurdin v. SEI Boston, LLC, 452 Mass.
436, 444 (2008). "However, 'time and again, we have stated that
we should not accept the literal meaning of the words of a
statute without regard for that statute's purpose and history.'"
St. Germain, 418 Mass. at 521, quoting from Sterilite Corp. v.
Continental Cas. Co., 397 Mass. 837, 839 (1986). Here, where,
in contrast to § 60B, the Legislature decided not to impose a
7
Even assuming that notice under § 60L is an element, if
not a "special element," of a medical malpractice claim, "[a]
motion to dismiss under rule 12(b)(6) does not necessarily lie
where the complaint merely fails to plead an element of a cause
of action." Schinkel v. Maxi-Holding, Inc., 30 Mass. App. Ct.
41, 51 (1991).
13
penalty for noncompliance with § 60L, we think it clear that the
"Legislature did not intend that the procedures of [§ 60L]
should unreasonably obstruct the prosecution of meritorious
malpractice claims or that they should eliminate any substantive
right of injured persons to sue for damages."8 Hanley v.
Polanzak, 8 Mass. App. Ct. 270, 274 (1979). In any event, where
"the particular questions of procedure with respect to . . .
[§ 60L are] without definite precedent," Goldstein v. Barron,
382 Mass. 181, 186 (1980), "the plaintiff has to be given the
benefit of the doubt under rule 12(b)(6) standards." Kipp v.
Kueker, 7 Mass. App. Ct. 206, 210 (1979).
The plaintiff filed her complaint less than one year after
§ 60L became effective, and one and one-half years before the
statute of limitations on her claim expired. Service was
completed within three months. As stated in her motion for
reconsideration, the plaintiff sent notice to defendant's
counsel pursuant to § 60L(a) on March 4, 2014 (also over one
year before the statute of limitations expired). In addition,
the plaintiff alleges in her complaint that more than one year
before she filed her complaint, the defendant opined in a letter
he wrote for her workers' compensation claim that a cause of her
disability was the previous cortisone shots, which directly
8
We offer no opinion on the merits of the plaintiff's
claims.
14
implicates his treatment. On these facts, the defendant, as
intended by § 60L, had ample "'opportunity to review the facts
and the law involved to see if the requested relief should be
granted or denied' and to enable [him] to make 'a reasonable
tender of settlement'" before the statute of limitations on the
plaintiff's claim expired. York v. Sullivan, 369 Mass. 157, 162
(1975), quoting from Slaney, 366 Mass. at 704-705.
"[W]e think it desirable . . . that our courts adjudicate
substantive controversies on the merits where practicable."
Paquette, 55 Mass. App. Ct. at 849. "It is not novel to allow
amendments to pleadings for the purpose of presenting facts
which have intervened since the commencement of a proceeding,"
such as the plaintiff's sending of notice as required by § 60L.
Schertzer v. Somerville, 345 Mass. 747, 750 (1963). See G. L.
c. 231, § 51, as appearing in St. 1988, c. 141, § 1 ("In all
civil proceedings, the court may at any time[] . . . allow . . .
amendment in matter of form or substance in any process,
pleading or proceeding, which may enable the plaintiff to
sustain the action for the cause or for recovery for the injury
for which the action was intended to be brought"); Attorney Gen.
v. Henry, 262 Mass. 127, 129-130 (1928) (G. L. c. 231, § 51,
"has been broadly interpreted . . . so as to accomplish as to
form and technical procedure whatever the justice of the case
requires, unless prevented by positive rules of law"). Because
15
"[s]ubstance and reality, not form and theory, must prevail" in
this Commonwealth, Lambley v. Kameny, 43 Mass. App. Ct. 277, 285
(1997), and because the purposes of § 60L were fulfilled in this
case, "[w]e see no reason why in justice an amendment [to the
complaint] should not be allowed [and that as so amended the
complaint satisfy the intent of § 60L's notice requirement in
order] to enable the plaintiff to prosecute the action." Green
v. Horton, 326 Mass. 503, 507 (1950). See Rafferty v. Sancta
Maria Hosp., 5 Mass. App. Ct. 624, 627 (1977) ("That the action
before such an amendment was flawed does not necessarily
preclude a curative amendment").
Conclusion. The orders allowing the defendant's motion to
dismiss and denying the plaintiff's motion for reconsideration
are vacated. The judgment is reversed and the matter is
remanded to the Superior 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.
So ordered.