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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.
