A new Massachusetts law has created a procedure designed to encourage early resolution of medical malpractice claims and avoid litigation. For the most part, in Pennsylvania and elsewhere, medical malpractice claims are adjudicated through the courts. Unlike other types of personal injury claims, where a significant percentage of cases settle before a lawsuit is actually filed, nearly all medical malpractice cases end up in litigation. Under the new Massachusetts law, anyone who intends to sue a healthcare provider must give the provider six months notice of their intuition to file a lawsuit. The idea is that this six-month period allows the healthcare provider the opportunity to investigate the claim and, if it has merit, negotiate a resolution.
In addition to the six-month waiting period, the law requires healthcare providers to inform patients when medical mistakes are made, and also incorporates an “apology law” which is similar to the Pennsylvania Benevolent Gesture Law that was recently signed into law. Like the Pennsylvania statute, the apology law allows healthcare providers to apologize for medical mistakes without having their words used against them in a subsequently medical malpractice case.
As I have discussed often in this space, states have taken a number of different approaches to limit, if not eliminate, the filing of frivolous medical malpractice claims and/to encourage the early resolution of such claims. The recent trend seems to be some variation of the waiting period Massachusetts has decided to employ. For example, in Oregon, the legislature has created a forum in which healthcare providers and patients can attempt to amicably resolve medical malpractice claims outside of the court system. Under that program, when a patient believes they have been the victim of medical malpractice, they have the option of holding a discussion with the doctor or other healthcare provider they believe has injured them. The conversation is completely confidential, and the parties have the option of having a mediator present. As with the Massachusetts law, the goal is to encourage early resolution of claims outside of the court system.
While Pennsylvania has enacted certain procedural mechanisms that have been very effective at limiting the filing of frivolous medical malpractice claims, they have yet to adopt any sort of formal program that would facilitate pre-suit settlement of such claims. However, at least in my own practice, I have seen an increase in the desire of healthcare providers and their liability insurance carriers to discuss pre-suit settlement. Perhaps Pennsylvania, like other states, will at some point take the step of endorsing and formalizing this process.
