Arsenault v. Bhattacharya (Lawyers Weekly No. 11-094-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]