SECTION 1. Section 5 of Chapter 112 as appearing in the
2004 official edition is hereby amended on line 140 after the word “occasions”
the following: For purposes of this subsection, the offering of expert
testimony in any action for malpractice, negligence, error, omission, mistake,
or unauthorized rendering of professional services against a physician licensed
pursuant to section 2 of Chapter 112 of the general laws, shall constitute the
practice of medicine.
SECTION 2. Chapter 175 of the Massachusetts General Laws
is hereby amended by the addition of the following new section:
Section 193 V: Every insurer or risk management
organization which provides insurance to a physician licensed under Chapter 112
of the Massachusetts General Laws shall make an annual report to the Betsy
Lehman Center for Patient Safety and Medical Error Reduction established by
Chapter 177 of the Acts of 2001. Said report shall list the top ten
categories of losses, claims or actions for damage for personal injuries
alleged to have been caused by error, omission or negligence in the performance
by physicians of medical services the company incurred during the previous
calendar year. Said report shall also identify the top ten defendant
specialties as to cost and frequency of cases in the prior year. Where
applicable, organizations shall include reports outlining losses and claims for
non-physician health care providers as well. Reports shall include completed
cases and settlements only and shall include no information identifying
providers or patients. Reports shall be provided to the center at its request
under annual timelines and reporting requirements established by the center
with the input of the advisory committee established in Chapter 6A Section 16 E
(C). The Center shall use this information in the development of
evidence-based best practices to reduce medical errors and enhance patient
safety as required by Chapter 6A Section 16 E (e) 1 to increase awareness of
error prevention strategies through public and professional education as
required by Chapter 6A Section 16 E (e) 4.
SECTION 3. Section 60G of Chapter 231 of the General
Laws as appearing in 2000 official addition is amended by striking in lines 10
and 11 the following: “prior to the judgment” and adding in lines 12 and
27 after the word “compensated” the following: , replaceable, compensable or
indemnifiable,.
SECTION 4. Chapter 231 of the General Laws is hereby
amended by adding after section 60J, the following new section:
Section 60K. In any action for malpractice, error or
mistake against a provider of health licensed pursuant to section 2 of Chapter
112, including actions pursuant to section 60B of this Chapter, an expert
witness shall be board certified in the same specialty as the defendant
licensed pursuant to section 2 of Chapter 112.
SECTION 5. Chapter 231 of the General Laws is
hereby amended by adding after section 60K, the following new section:
Section 60L. In every action for malpractice, negligence,
error, omission, mistake or the unauthorized rendering of professional services
against a provider of health care where the court shall, at the request of
either party, (a) Enter a judgment ordering that money damages or its
equivalent for future damages of the judgment creditor be paid in whole or in
part by periodic payments rather than by a lump-sum payment if the award equals
or exceeds fifty thousand dollars ($50,000) in future damages. In
entering a judgment ordering of the payment of future damages by periodic
payments, the court shall make a specific finding as to the dollar amount of
periodic payments which will compensate the judgment creditor for such future
damages, the court shall require the defendant who is not adequately insured to
post security adequate to assure full payment of such damages awarded by the
judgment. Upon termination of periodic payments of future damages, the court
shall order the return of this security, or so much as remains, to the
defendant.
(b)(1) The judgment
ordering the payment of future damages by periodic payments shall specify the
recipient or recipients of the payments, the dollar amount of the payments, the
interval between payments, and the number of payments or the period of time
over which payments shall be made. Such payments shall only be subject to
modification in the event of the death of the judgment creditor.
(2) In the event that the
court finds that the defendant has exhibited a continuing pattern of failing to
make the payments, as specified in paragraph (1), the court shall find the
defendant in contempt of court and, in addition to the required periodic payments,
shall order the defendant to pay the plaintiff all damages caused by the
failure to make such periodic payments, including court costs and attorney’s
fees.
(c) However, money
damages awarded for loss of future earnings shall not be reduced or payments
terminated by reason of the death of the plaintiff, but shall be paid to
persons to whom the plaintiff owed a duty of support, as provided by law,
immediately prior to his death. In such cases the court which rendered
the original judgment, may, upon petition of any party in interest, modify the
judgment to award and apportion the unpaid future damages in accordance with
this subdivision.
(d) Following the
occurrence or expiration of all obligations specified in the periodic payment
judgment, any obligation of the defendant to make future payments shall cease
and any security given, pursuant to section (a) shall revert to the defendant.
SECTION 6. Said chapter 231 is hereby amended by
inserting after section 60L the following section:—
Section 60M. In any action for malpractice, negligence, error,
omission, mistake or unauthorized rendering of professional services against a
provider of health care, in which a verdict is rendered or a finding made or an
order for judgment made for pecuniary damages for personal injuries to the
plaintiff or for consequential damages, there shall be added by the clerk of
the court to the amount of damages interest thereon, at a rate to be determined
as set forth below rather than the rate specified in section 6B of chapter 231,
from the date of the commencement of the action even though such interest
brings the amount of the verdict or finding beyond the maximum liability
imposed by law. For all judgments entered after the effective date of this act,
the rate of interest to be applied by the clerk shall be at a rate equal to the
weekly average 1-year constant maturity Treasury yield, as published by the
Board of Governors of the Federal Reserve System for the calendar week
preceding the date of judgment. At no point shall the rate of interest
established by this section exceed the rate of interest set forth in said
section 6B of chapter 231.
SECTION 7. Chapter 231 of the General Laws is hereby
amended by adding the following section:
Section 60N. In any action for malpractice, error,
omission, mistake or the unauthorized rendering of professional services
against a provider of health care, the liability of each defendant for damages
shall be several only and shall not be joint. Each defendant shall be
liable only for the amount of damages allocated to that defendant in direct
proportion to that defendant’s percentage of fault, and a separate judgment
shall be rendered against that defendant for that amount.
