Heard: April 13, 2016.
action commenced in the Superior Court Department on October
motion to dismiss was heard by Robert A. Cornetta, J., and a
motion for reconsideration was considered by him.
Newton for the plaintiff.
F. Newton for the defendant.
Present: Vuono, Meade, & Carhart, JJ.
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.l
(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.
begin with a brief overview of G. L. c. 231, § 60L, set
forth in full in the margin. 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 "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,  became effective on November 4, 2012.
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. 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.
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."
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.
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.
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.,  Rather than refiling, the plaintiff