Recent Developments in Medical Malpractice Law and G.L. c. 93A Law, 2003-2004, by David W. White (2004)

By David W. White

While G.L. c. 93A affords Massachusetts consumers broad remedies and significant damages for unfair and deceptive acts, the Consumer Protection Act has found little application in the area of medical malpractice. The Supreme Judicial Court has now made it clear that G.L. c. 93A will not apply to ordinary claims of medical negligence. Darviris v. Petros, 442 Mass. 274 (2004). The court has left open, however, claims arising from medical negligence which are combined with some element of unfair or deceptive acts, or in claims arising from the business context of the practice of medicine.

In the Darviris case, plaintiff had sought medical care for rectal bleeding problems. She wished to undergo a fissurectomy, but instead received a hemorrhoidectomy at surgery. The consent form contemplated procedures other than fissurectomy, which plaintiff claimed was never explained to her. Further, though plaintiff was conscious during her procedure, she was not informed of the change of plans. The operation was followed by complications, and plaintiff brought a medical malpractice claim against the surgeon, alleging violations of the Patient’s Bill of Rights, G.L. c. 111, § 70E, battery, negligence, failure of informed consent, and violation of G.L. c. 93A.

The defendant moved for summary judgment, claiming the conduct, as alleged, did not violate G.L. c. 93A, and that the underlying tort claims were barred by the statute of limitations. The motion was allowed, and the Appeals Court affirmed. Darviris v. Petros, 59 Mass. App. Ct. 323 (2003). Upon further appellate review, the Supreme Judicial Court affirmed.

The court held that mere acts of medical negligence, without more, will not constitute unfair or deceptive acts prohibited by G.L. c. 93A. The purpose of the act is to improve the commercial relationship between a consumer and a business person. The fact that there is a business aspect involved in the delivery of health care, by itself, is insufficient to engage the machinery of G.L. c. 93A. This ruling with respect to medical negligence cases follows a well established line of cases with respect to legal malpractice claims. The courts have consistently held that the negligent handling of a matter by an attorney will not, by itself, be a violation of G.L. c. 93A; however unfair or deceptive acts, including dishonesty, fraud, deceit or deliberate misrepresentation, could give rise to G.L. c. 93A claims against an attorney. See Meyer v. Wagner, 429 Mass. 410 (1999); Poly v. Moylan, 423 Mass. 141 (1996); Squeri v. McCarrick, 32 Mass. App. Ct. 203 (1992).

In Darviris, upon review of the facts of the case, the court concluded that there were no unfair or deceptive acts on the part of the defendant physician.

Significantly, the court left the door wide open for G.L. c. 93A claims against health care providers where there were unfair and deceptive acts in the entrepreneurial or business aspects of medical care. The exceptions, which the court found did not apply to the claims in Darviris, might include dissemination of deceptive or misleading advertisements or promotional materials and billing. The court also cited with approval a Washington case indicating that failing to obtain informed consent may also be a violation, provided the consent relates to the business aspect of the treatment.

The court rejected plaintiff’s argument that the Attorney General’s regulations provided a basis for the G.L. c. 93A claim. Plaintiff argued that the lack of proper informed consent required by G.L. c. 111, § 70E was an appropriate basis for her G.L. c. 93A claim. She reasoned that if the doctor failed to follow that statute by obtaining informed consent, he would have violated the law; and that the Attorney General’s regulations, 940 Code Mass. Regs § 3.16(3), make any such violation of law a violation of G.L. c. 93A. The court left open, for another day, whether the Attorney General’s regulations were facially valid. Instead, the court reasoned, since the Legislature has “covered the field” of medical negligence in the negligence statutes, G.L. c. 231, §§60B-60E, application of the Attorney General’s regulations was not appropriate.

As the court also noted, violations of the Patient’s Bill of Rights at G.L. c. 111, § 70E may still provide a basis for a G.L. c. 93A claim. However there will still be no G.L. c. 93A claim where the underlying claim is one only for medical negligence. Failure to obtain informed consent is, in Massachusetts, an act of medical negligence. Harnish v. Children’s Hosp. Med. Ctr., 387 Mass. 152, 154 (1982).

The remainder of the claims, including the negligence, battery, and informed consent claims, had been dismissed as time-barred. The dismissal of all of the claims was affirmed.

Although not specifically identified by the court in Darviris, it would seem likely that claims relating to intentional medical record alteration or record destruction would be covered by G.L. c. 93A. G.L. c. 111, § 70, sets forth the requirement that hospitals and clinics licensed by the Department of Public Health maintain accurate medical records, and G.L. c. 111, § 70E(g) requires such hospitals to make the records available on demand. As the court stated in Darviris “a violation of G.L. c. 111, § 70E may in some cases constitute a violation of G.L. c. 93A”. Id. at 284. It also seems likely that the court would require more than a mere showing of negligence if the records had been lost (or “lost” as the case may be; compare Keene v. Brigham and Women’s Hospital, Inc., 439 Mass. 223 (2003)).

As for lost medical records, a tension also exists with the line of spoliation cases, which provides for appropriate sanctions but no claims under G.L. c. 93A. In particular, in Fletcher v. Dorchester Mutual Ins. Co., 437 Mass. 544 (2002), the court held that there was no independent cause of action for spoliation of evidence, but that the courts would be free to fashion appropriate sanctions against a party when spoliation had occurred. That sanction may include default. In Keene v. Brigham and Women’s Hospital, Inc., 439 Mass. 223 (2003), the hospital was defaulted for its failure to maintain and provide to the plaintiff a copy of the essential portions of the medical record which included the identities of the medical providers and the treatment they provided—or failed to provide—in the critical first hours of the plaintiff’s life. Though the default was the most extreme sanction for the spoliation, the court upheld it.

Spoliation, however, cannot form the basis of a G.L. c. 93A claim. Gath v. M/A-Com, Inc., 440 Mass. 482 (2004). In Gath, the defendant disposed of the critical evidence in the case—a gate—shortly after the claim for serious personal injuries was made. As a sanction for this intentional spoliation, the trial judge precluded the defendant from arguing or offering evidence that the gate had been secured on the date of the accident, and from arguing that the gate had not been blowing into the street. Plaintiff’s counsel was also permitted to introduce and argue evidence regarding the removal and destruction of the gate. Despite the clear evidence of intentional conduct, the court would not recognize a separate G.L. c. 93A claim against the defendant. Since the court had already ruled in the Fletcher case that there was no independent cause of action for spoliation, similarly there should be no G.L. c. 93A claim for spoliation.

Altered medical records proved to be a significant problem for one medical provider in 2004. In the Superior Court case of Eastern Dentists Insurance Company v. Lindsay, 18 Mass. L. Rep. 213 (Suffolk Sup. Ct. 2004), summary judgment was granted in favor of an insurer after it was demonstrated by unrebutted evidence that the insured dentist had altered his dental records for the patient who brought a malpractice claim. The contract of insurance had a provision stating, “The insured shall not alter any medical records or commit any other act that would interfere with the company’s ability to defend a claim or suit against the insured. Alteration of medical records will make the policy void.” Ibid. The provision was clear and unambiguous, and the court found no reason to void the provision as against public policy. The provision had been added to the policy because the alteration of records “‘often constitutes an attempt to avoid legal liability for an act of professional malpractice. Any such alteration of medical records substantially increase the likelihood of a verdict in favor of a patient and/or a verdict which is punitive in nature.’” Ibid. This case has been appealed.

While the courts have been careful to not expand the rights of claimants to recover under G.L. c. 93A in medical negligence cases, it is equally clear that G.L. c. 93A will be relevant to claims in certain circumstances. Such claims will be viable when a medical provider makes intentional misrepresentations, or commits unfair and deceptive acts in the business aspects of the delivery of medicine. It remains to be seen how the courts will interpret conflicting language in the realm of medical record keeping.

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