PATRICIA ARSENAULT vs. SUBROTO BHATTACHARYA.

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

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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. [Note 1] Pursuant to

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§ 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 "the filing of suit at any time

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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, [Note 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. 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. [Note 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." [Note 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 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.

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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. [Note 5], [Note 6] Rather than refiling, 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.

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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 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.

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Similarly, c. 93A "create[d] new substantive rights and provide[d] new procedural devices for the enforcement of those 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 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. [Note 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

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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 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." [Note 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 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.

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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 "[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.