Massachusetts Statutes Cited
Chapter 93A Table of Contents:
Regulation of Business Practices for Consumers Protection.Chapter 111: Section 203.
Provider misconduct; medical peer review.Chapter 111C: Section 13.
Liability of doctors, nurses, hospitals, ambulance operators and attendants.Chapter 111C: Section 14.
Liability of emergency medical technicians, police officers or firefighters.Chapter 112: Section 12B.
Emergency care of injured persons; exemption from civil liability.Chapter 112: Section 12C.
Immunity of physician or nurse.Chapter 112: Section 12F.
Emergency treatment of minors.Chapter 156 Table of Contents:
Business Corporations.Chapter 180 Table of Contents:
Corporations for Charitable and Certain Other PurposesChapter 214: Section 1B.
Right of privacy.Chapter 231: Section 60B.
Malpractice actions against providers of health care; tribunal.Chapter 231: Section 60D.
Claim by minor against provider of health care; limitations.Chapter 231: Section 60F.
Award of damages; elements and itemization of amounts.Chapter 231: Section 85K.
Limitation of tort liability of certain charitable organizations; liability of directors, officers or trustees of educational institutions.Chapter 233: Section 79.
Records and copies of records of hospitals and certain institutions; admissibility as evidence.Chapter 233: Section 79A.
Certified copies of public and private records.Chapter 233: Section 79B.
Fact statements published for persons in particular occupation.Chapter 233: Section 79C.
Statements of fact or opinion in scientific publication; notice of intention to use.Chapter 233: Section 79G.
Medical and hospital services; evidence.
[FRCP 36 (a) Request for Admission. (b) Effect of Admission.]
Chapter 111: Section 203. Provider misconduct; medical peer review.
Section 203. (a) The by-laws of every licensed hospital and the by-laws of all medical staffs shall contain provisions for reporting conduct by a health care provider that indicates incompetency in his specialty or conduct that might be inconsistent with or harmful to good patient care or safety. Said by-laws shall direct a procedure for investigation, review and resolutions of such reports.(b) Whenever, following review by a medical peer review committee of a licensed hospital determination is reached that a health care provider's privileges should be suspended in the best interests of patient care, such committee shall immediately forward the recommendation to the executive committee of the medical staff and the institution's board of trustees for action. A provider whose privileges are suspended shall be entitled to notice and a prompt hearing following suspension, in accordance with the institution's medical staff by-laws.
Chapter 111C: Section 13. Liability of doctors, nurses, hospitals, ambulance operators and attendants.
Section 13. No physician duly registered under the provisions of sections two, two A, or nine of chapter one hundred and twelve, and no nurse duly registered under the provisions of section seventy-four or section seventy-six of said chapter, and no hospital shall be liable in a suit for damages as a result of acts or omissions related to advice, consultation or orders given in good faith to ambulance operators and attendants who are qualified under section six, and are acting on behalf of an ambulance service duly licensed under section three, by radio, telephone or other remote means of communication under emergency conditions and prior to arrival of the patient at the hospital, clinic, office or other health facility from which the emergency communication to the ambulance operator or attendant is made; nor shall any said ambulance operator or attendant be liable in a suit for damages as a result of his said acts or omissions based upon said advice, consultation or orders by remote communication, if the said acts or omissions were made in good faith.
Chapter 111C: Section 14. Liability of emergency medical technicians, police officers or firefighters.
[ Text as amended by 1998, 137, Sec. 1 effective August 26, 1998. For text effective until August 26, 1998, see above.]Section 14. No emergency medical technician certified under the provisions of this chapter and no police officer or firefighter, who in the performance of his duties and in good faith renders emergency first aid, including, but not limited to, the use of any semi-automatic or automatic external defibrillator or transportation to an injured person or to a person incapacitated by illness shall be personally in any way liable as a result of rendering such aid or as a result of transporting such person to a hospital or other safe place, nor shall he be liable to a hospital for its expenses if, under emergency conditions, he causes the admission of such person to said hospital. (Amended by 1998, 137, Sec. 1 eff. 8-26-98.)
Chapter 112: Section 12B. Emergency care of injured persons; exemption from civil liability.
Section 12B. No physician duly registered under the provisions of section two, two A, nine, nine A or nine B, no physician assistant duly registered under the provisions of section nine I or his employing or supervising physician, and no nurse duly registered or licensed under the provisions of section seventy-four, seventy-four A or seventy-six, or resident in another state, in the District of Columbia or in a province of Canada, and duly registered therein, who, in good faith, as a volunteer and without fee, renders emergency care or treatment, other than in the ordinary course of his practice, shall be liable in a suit for damages as a result of his acts or omissions, nor shall he be liable to a hospital for its expenses if, under such emergency conditions, he orders a person hospitalized or causes his admission.
Chapter 112: Section 12C. Immunity of physician or nurse.
Section 12C. No physician or nurse administering immunization or other protective programs under public health programs shall be liable in a civil suit for damages as a result of any act or omission on his part in carrying out his duties.
Chapter 112: Section 12F. Emergency treatment of minors.
Section 12F. No physician, dentist or hospital shall be held liable for damages for failure to obtain consent of a parent, legal guardian, or other person having custody or control of a minor child, or of the spouse of a patient, to emergency examination and treatment, including blood transfusions, when delay in treatment will endanger the life, limb, or mental well-being of the patient.Any minor may give consent to his medical or dental care at the time such care is sought if (i) he is married, widowed, divorced; or (ii) he is the parent of a child, in which case he may also give consent to medical or dental care of the child; or (iii) he is a member of any of the armed forces; or (iv) she is pregnant or believes herself to be pregnant; or (v) he is living separate and apart from his parent or legal guardian, and is managing his own financial affairs; or (vi) he reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health pursuant to section six of chapter one hundred and eleven; provided, however, that such minor may only consent to care which relates to the diagnosis or treatment of such disease.
Consent shall not be granted under subparagraphs (ii) through (vi), inclusive, for abortion or sterilization.
Consent given under this section shall not be subject to later disaffirmance because of minority. The consent of the parent or legal guardian shall not be required to authorize such care and, notwithstanding any other provisions of law, such parent or legal guardian shall not be liable for the payment for any care rendered pursuant to this section unless such parent or legal guardian has expressly agreed to pay for such care.
No physician or dentist, nor any hospital, clinic or infirmary shall be liable, civilly and criminally, for not obtaining the consent of the parent or legal guardian to render medical or dental care to a minor, if, at the time such care was rendered, such person or facility: (i) relied in good faith upon the representations of such minor that he is legally able to consent to such treatment under this section; or (ii) relied in good faith upon the representations of such minor that he is over eighteen years of age.
All information and records kept in connection with the medical or dental care of a minor who consents thereto in accordance with this section shall be confidential between the minor and the physician or dentist, and shall not be released except upon the written consent of the minor or a proper judicial order. When the physician or dentist attending a minor reasonably believes the condition of said minor to be so serious that his life or limb is endangered, the physician or dentist shall notify the parents, legal guardian or foster parents of said condition and shall inform the minor of said notification.
Chapter 214: Section 1B. Right of privacy.
Section 1B. A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages.
Chapter 231: Section 60B. Malpractice actions against providers of health care; tribunal.
Section 60B. Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth under the provisions of section two of chapter one hundred and twelve and an attorney authorized to practice law in the commonwealth, at which hearing the plaintiff shall present an offer of proof and said 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.Said physician shall be selected by the single justice from a list submitted by the Massachusetts Medical Society representing the field of medicine in which the alleged injury occurred and licensed to practice medicine and surgery in the commonwealth under the provisions of section two of chapter one hundred and twelve. The list submitted to the single justice shall consist only of physicians who practice medicine outside the county where the defendant practices or resides or if the defendant is a medical institution or facility outside the county where said institution or facility is located. The attorney shall be selected by the single justice from a list submitted by the Massachusetts Bar Association. The attorney and physician shall, subject to appropriation, each be compensated in the amount of fifty dollars.
Where the action of malpractice is brought against a provider of health care not a physician, the physician's position on the tribunal shall be replaced by a representative of that field of medicine in which the alleged tort or breach of contract occurred, as selected by the superior court justice in a manner he determines fair and equitable.
Where there are codefendants representing more than one field of health care the superior court justice shall determine in his discretion who shall represent the health care field on the tribunal.
Each such action for malpractice shall be heard by said tribunal within fifteen days after the defendant's answer has been filed. Substantial evidence shall mean such evidence as a reasonable person might accept as adequate to support a conclusion. Admissible evidence shall include, but not be limited to, hospital and medical records, nurses' notes, x-rays and other records kept in the usual course of the practice of the health care provider without the necessity for other identification or authentication, statements of fact or opinion on a subject contained in a published treatise, periodical, book or pamphlet or statements by experts without the necessity of such experts appearing at said hearing. The tribunal may upon the application of either party or upon its own decision summon or subpoena any such records or individuals to substantiate or clarify any evidence which has been presented before it and may appoint an impartial and qualified physician or surgeon or other related professional person or expert to conduct any necessary professional or expert examination of the claimant or relevant evidentiary matter and to report or to testify as a witness thereto. Such a witness shall be allowed traveling expenses and a reasonable fee to be fixed by the tribunal which shall be assessed as costs. The testimony of said witness and the decision of the tribunal shall be admissible as evidence at a trial.
If a finding is made for the defendant or defendants in the case the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars in the aggregate secured by cash or its equivalent with the clerk of the court in which the case is pending, payable to the defendant or defendants in the case for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment. Said single justice may, within his discretion, increase the amount of the bond required to be filed. If said bond is not posted within thirty days of the tribunal's finding the action shall be dismissed. Upon motion filed by the plaintiff, and a determination by the court that the plaintiff is indigent said justice may reduce the amount of the bond but may not eliminate the requirement thereof. (1986, 351, Sec. 21.)
For the purposes of this section, a provider of health care shall mean a person, corporation, facility or institution licensed by the commonwealth to provide health care or professional services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his employment. (Amended by 1988, 199, Sec. 41.)
The expenses and compensation of said tribunal shall be paid by the commonwealth, provided, however, that the pro rata percentage of such expenses and compensation engendered by actions brought against providers of health care registered under chapter one hundred and twelve shall not be in excess of the amounts received by the commonwealth for registration fees for such providers of health care under said chapter one hundred and twelve, less the amount expended for expenses and compensation of the respective boards of registration of said providers of health care under said chapter one hundred and twelve.
Whenever the tribunal makes a finding, the clerk of the court shall, no later than fifteen days after such finding, send a copy of the complaint and finding to the board of registration in medicine.
Upon entry of judgment, settlement, or other final disposition at trial court level, the clerk shall, no later than fifteen days after such entry, send a copy of the judgment, settlement or other final disposition, to the board of registration in medicine. The terms of such judgment, settlement, or other final disposition shall not be sealed by agreement of the parties or by any other means and shall be available for public inspection, except, however, the identity of the plaintiff may be kept confidential by the board. (1986, 351, Sec. 22.)
Chapter 231: Section 60D. Claim by minor against provider of health care; limitations.
Section 60D. Notwithstanding the provisions of section seven of chapter two hundred and sixty, any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body. (1986, 351, Sec. 23.)
Chapter 231: Section 60F. Award of damages; elements and itemization of amounts.
Section 60F. (a) In every action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services against a provider of health care which is tried to a jury, the court shall instruct the jury that if the jury awards damages to the plaintiff or plaintiffs it shall specify the total amount of damages, as well as the applicable elements of special and general damages upon which the award of damages is based and the amount of the total damages assigned to each element, including, but not limited to:(1) Amounts intended to compensate the plaintiff for reasonable expenses which have been incurred, or which will be incurred, for necessary medical, surgical, X-ray, dental, or rehabilitative services, including prosthetic devices; necessary ambulance, hospital, and nursing services; drugs; and therapy;
(2) Amounts intended to compensate the plaintiff for lost wages or loss of earning capacity and other economic losses which have been incurred or will be incurred; and
(3) Amounts intended to compensate the plaintiff for pain and suffering, loss of companionship, embarrassment, and other items of general damages, which have been incurred or will be incurred in the future, and whether there is a substantial or permanent loss or impairment of a bodily function, or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of the limitation specified in section sixty I would deprive the plaintiff of just compensation for the injuries sustained.
Each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. In itemizing amounts intended to compensate for future damages, the jury shall set forth the period of weeks, months or years over which such amounts are intended to provide compensation. The court shall apply to each element of past and future damages any rules of law applicable to the review of jury verdicts, including without limitation the sufficiency of the evidence to support the verdict, any set-offs or credits, and appropriate additurs or remittiturs.
(b) In every action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services against a provider of health care which is tried without a jury, if the court awards damages to the plaintiff or plaintiffs, it shall find the total amount of damages, and specify the applicable elements of special and general damages upon which the award of damages is based and the amount of the total damages assigned to each element, including, but not limited to:
(1) Amounts intended to compensate the plaintiff for reasonable expenses which have been incurred, or which will be incurred, for necessary medical, surgical, X-ray, dental, or rehabilitative services, including prosthetic devices; necessary ambulance, hospital and nursing services; drugs; and therapy;
(2) Amounts intended to compensate the plaintiff for lost wages or loss of earning capacity and other economic losses which have been incurred or will be incurred; and
(3) Amounts intended to compensate the plaintiff for pain and suffering, loss of companionship, embarrassment, and other items of general damages, which have been incurred or will be incurred in the future, and whether there is a substantial or permanent impairment of a bodily function, or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of the limitation specified in section sixty I would deprive the plaintiff of just compensation for the injuries sustained.
Each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. In itemizing amounts intended to compensate for future damages, the court shall set forth the period of weeks, months or years over which such amounts are intended to provide compensation. (1986, 351, Sec. 24.)
Chapter 231: Section 85K. Limitation of tort liability of certain charitable organizations; liability of directors, officers or trustees of educational institutions.
Section 85K. It shall not constitute a defense to any cause of action based on tort brought against a corporation, trustees of a trust, or members of an association that said corporation, trust, or, association is or at the time the cause of action arose was a charity; provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation, trust, or association, liability in any such cause of action shall not exceed the sum of twenty thousand dollars exclusive of interest and costs. Notwithstanding any other provision of this section, the liability of charitable corporations, the trustees of charitable trusts, and the members of charitable associations shall not be subject to the limitations set forth in this section if the tort was committed in the course of activities primarily commercial in character even though carried on to obtain revenue to be used for charitable purposes.No person who serves as a director, officer or trustee of an educational institution which is, or at the time the cause of action arose was, a charitable organization, qualified as a tax-exempt organization under 26 USC 501(c)(3)
Chapter 233: Section 79. Records and copies of records of hospitals and certain institutions; admissibility as evidence.
Section 79. Records kept by hospitals, dispensaries or clinics, and sanatoria under section seventy of chapter one hundred and eleven shall be admissible, and records which the court finds are required to be kept by the laws of any other state or territory, or the District of Columbia, or by the laws and regulations of the United States of America pertaining to the department of national defense and the veterans administration, by hospitals, dispensaries or clinics, and sanatoria similarly conducted or operated or which, being incorporated, offer treatment free of charge, may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases and the court may, in its discretion, admit copies of such records, if certified by the persons in custody thereof to be true and complete; but nothing therein contained shall be admissible as evidence which has reference to the question of liability. Copies of photographic or microphotographic records so kept by hospitals, dispensaries or clinics, or sanatoria, when duly certified by the person in charge of the hospital, dispensary or clinic, or sanatorium, shall be admitted in evidence equally with the original photographs or microphotographs.A record kept by any hospital, dispensary or clinic, or sanatorium under section seventy of chapter one hundred and eleven which is required to be produced in court by any party shall be certified by the affidavit of the person in custody thereof to be a true and complete record, and shall be delivered by such hospital, dispensary or clinic, or sanitorium to the clerk of such court, who shall keep the same in his custody until its production is called for at the trial or hearing by the party requiring the said record. Such record, so certified and delivered shall be deemed to be sufficiently identified to be admissible in evidence if admissible in all other respects. The party requiring the production of said record and, in the discretion of the court, any other party may examine said record in the custody of the clerk at any time before it is produced in court. The clerk upon completion of such trial or hearing shall notify such hospital that said record is no longer required and will be returned to the hospital by certified mail unless an authorized representative of the hospital calls for the same at the office of said clerk within seven days of said notice.
Chapter 233: Section 79A. Certified copies of public and private records.
Section 79A. Copies of public records, of records described in sections five, seven and sixteen, respectively, of chapter sixty-six, and of records of banks, trust companies, insurance companies and hospitals, whether or not such records or copies are made by the photographic or microphotographic process, shall, when duly certified by the person in charge thereof, be admitted in evidence equally with the originals.
Chapter 233: Section 79B. Fact statements published for persons in particular occupation.
Section 79B. Statements of facts of general interest to persons engaged in an occupation contained in a list, register, periodical, book or other compilation, issued to the public, shall, in the discretion of the court, if the court finds that the compilation is published for the use of persons engaged in that occupation and commonly is used and relied upon by them, be admissible in civil cases as evidence of the truth of any fact so stated.
Chapter 233: Section 79C. Statements of fact or opinion in scientific publication; notice of intention to use.
Section 79C. Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in so far as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitaria, as evidence tending to prove said facts or as opinion evidence; provided, however, that the party intending to offer as evidence any such statements shall, not less than thirty days before the trial of the action, give the adverse party or his attorney notice of such intention, stating the name of the writer of the statements, the title of the treatise, periodical, book or pamphlet in which they are contained, the date of publication of the same, the name of the publisher of the same, and wherever possible or practicable the page or pages of the same on which the said statements appear.
Chapter 233: Section 79G. Medical and hospital services; evidence.
Section 79G. In any proceeding commenced in any court, commission or agency, an itemized bill and reports, including hospital medical records, relating to medical, dental, hospital services, prescriptions, or orthopedic appliances rendered to or prescribed for a person injured, or any report of any examination of said injured person, including, but not limited to hospital medical records subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services or by the pharmacist or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable charge for such services or the necessity of such services or treatments, the diagnosis of said physician or dentist, the prognosis of such physician or dentist, the opinion of such physician or dentist as to proximate cause of the condition so diagnosed, the opinion of such physician or dentist as to disability or incapacity, if any, proximately resulting from the condition so diagnosed; provided, however, that written notice of the intention to offer such bill or report as such evidence, together with a copy thereof, has been given to the opposing party or parties, or to his or their attorneys, by mailing the same by certified mail, return receipt requested, not less than ten days before the introduction of same into evidence, and that an affidavit of such notice and the return receipt is filed with the clerk of the court, agency or commission forthwith after said receipt has been returned. Nothing contained in this section shall be construed to limit the right of any party to the action to summon, at his own expense, such physician, dentist, pharmacist, retailer of orthopedic appliances or agent of such hospital or health maintenance organization or the records of such hospital or health maintenance organization for the purpose of cross examination with respect to such bill, record and report or to rebut the contents thereof, or for any other purpose, nor to limit the right of any party to the action or proceeding to summon any other person to testify in respect to such bill, record or report or for any other purpose.The words "physician" and "dentist" shall not include any person who is not licensed to practice as such under the laws of the jurisdiction within which such services were rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel licensed to practice under the laws of the jurisdiction within which such services were rendered.
The word "hospital" shall mean any hospital required to keep records under section seventy of chapter one hundred and eleven, or which is in any way licensed or regulated by the laws of any other state, or by the laws and regulations of the United States of America, including hospitals of the Veterans Administration or similar type institutions, whether incorporated or not.
The words "health maintenance organization" shall have the same meaning as defined in section one of chapter one hundred and seventy-six G. (Amended by 1988, 130.)
FEDERAL RULES OF CIVIL PROCEDURE
V. DEPOSITIONS AND DISCOVERY
Rule 36. Requests for Admission(a) Request for Admission.
A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d) .
Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29 , the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a) (4) apply to the award of expenses incurred in relation to the motion.
(b) Effect of Admission.
Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provision of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.