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Bloom & Buell's

MALPRACTICE LIES IN REPOSE

For those of our readers interested in medical malpractice claims in Massachusetts, November 1, 1993 could turn out to be a pivotal date, assuming we are optimistic enough to think that the Statute of Repose enacted by the legislature in 1986 will actually be allowed to take effect as written.

Chapter 351 of the Acts of 1986, originally sponsored in part by the Massachusetts Medical Society, was intended to bring some reform to the malpractice situation.  Unfortunately, due to massive last-minute tinkering by the plaintiffs' bar, it gave Massachusetts the worst "Cap on pain and suffering" statute in the country.  The provision is so bad that defense counsel in virtually every case tried nowadays actually demand that it not be read to the jury, since it seemingly invites them to award big damages, in direct contradiction to the purpose of a "cap" statute.  However, there is another provision of the Act which established a Statute of Repose for substantially all malpractice cases (except foreign body cases).  How it escaped the clutches of the trail lawyers' lobbyists is beyond us, but, if it is allowed to work as intended, it may make up for that awful "cap" statute.

In effect, the statute directs that malpractice cases absolutely must be brought within seven years from the date of the act or omission complained about.  Prior judicial opinions had pretty much gutted the more general statutes of limitations by establishing highly subjective parameters for the operation of such statutes, centering around the plaintiff's state of knowledge.  So, what should have been done within three years, yet didn't get done for fifteen years, was found to have been timely done by the law.  And they wonder why the courts and lawyers are held in low esteem!  Anyway, this new Statute of Repose established a much more objective criterion, namely the date of the event complained of, and then sets a seven year limit.

The Act made the provisions of this law apply only to events occurring after November 1, 1986, so the first application of the new law began on November 1, 1993.  Defense counsel and claims personnel may now have one more arrow in their quiver, assuming that our appellate courts do not turn  perfectly good English on its head, and find that the statute doesn't mean what is so clearly says.  Of course, if the statute actually does begin to cut into the amount of litigation brought in this area, be on the lookout not only to the courts for efforts at cutting its hear out, but also to the legislature for crippling amendments adding more and more exceptions to the application of the law. [Those interested in more detail should read the test and notes of General Laws, Chapter 231, §60D, and Chapter 260, §4.]