Massachusetts Medical Malpractice Funding

Massachusetts medical malpractice claims must be filed within three years of accrual under M.G.L. c.260, section 4. Under the discovery rule recognized in Franklin v. Albert, 381 Mass. 611 (1980), the period does not begin until the plaintiff knows or reasonably should know of the injury and that it was caused by the defendant's conduct. A seven-year statute of repose runs from the negligent act regardless of discovery, with an exception for a foreign object left in the body. A minor under six has until the ninth birthday under M.G.L. c.231, section 60D. Massachusetts requires a presuit notice: under M.G.L. c.231, section 60L, the plaintiff must give each provider written notice at least 182 days before filing, with a shortened 90-day period where the limitations period is about to expire, and the notice tolls limitations. After filing, every med-mal claim must pass a medical malpractice tribunal under M.G.L. c.231, section 60B before it may proceed.

Modified comparative negligence with a 51 percent bar under M.G.L. c.231, section 85. A med-mal plaintiff's negligence bars recovery only if it is greater than the combined negligence of the defendants; otherwise the award is reduced proportionally. The statute presumes the plaintiff exercised due care, places the burden of proving plaintiff negligence on the defendant, and abolishes assumption of risk as a defense.

Massachusetts imposes a conditional cap on non-economic damages in medical malpractice under M.G.L. c.231, section 60H. Damages for pain and suffering, loss of companionship, embarrassment, and other general damages are limited to $500,000 unless the jury — or the judge in a bench trial, by separately stated written findings — determines that there is a substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or other special circumstances that warrant a finding that the cap would deprive the plaintiff of just compensation. When that finding is made, the cap does not apply at all; it is removed, not raised. Where multiple plaintiffs recover from a single occurrence without a qualifying finding, the awards are reduced proportionally to stay within $500,000 in the aggregate. Economic damages are not capped. In practice, most serious injury and wrongful death claims support the qualifying finding, so the cap operates mainly in cases of temporary or minor injury. Charitable hospitals are separately subject to the $100,000 tort liability limit in M.G.L. c.231, section 85K, which does not apply to physician defendants.

Massachusetts mandates prejudgment interest in tort actions under M.G.L. c.231, section 6B. The clerk adds interest at 12 percent per year to the verdict or finding, running from the date of commencement of the action — the filing date — through judgment. The statute expressly provides that this interest may push the total judgment above any applicable damages cap, so section 6B interest stacks on top of the section 60H cap rather than being limited by it. Interest applies to a judgment, not to a settlement.

Under M.G.L. c.223, section 1, a med-mal action is a transitory action filed in the county where any party lives or has a usual place of business — ordinarily the county of the hospital or practice, most often Suffolk or Middlesex. Med-mal actions are filed in the Superior Court, and the section 60B tribunal is convened in that court. Claims against public hospitals such as UMass Memorial and the Cambridge Health Alliance proceed under the Massachusetts Tort Claims Act, M.G.L. c.258, with its presentment requirement and $100,000 damages limit.

Massachusetts has no dedicated consumer litigation funding statute. No statutory cap.

How does the section 60B tribunal affect when a Massachusetts claim can be funded?

Every med-mal claim goes before a tribunal of a Superior Court judge, a physician, and an attorney, which reviews the plaintiff's offer of proof for a legitimate question of liability. A favorable tribunal finding is the point at which most Massachusetts med-mal claims are underwritten, because it confirms expert support survived a screening.

If the tribunal finds the offer of proof insufficient, the plaintiff may still proceed by posting a $6,000 bond for costs within 30 days, which the court may reduce for indigence but not eliminate. The tribunal's adverse finding is admissible at trial. Funders review the offer of proof, the tribunal's decision, and, if adverse, whether the bond was posted.

Is the $500,000 cap a real limit on a serious Massachusetts injury claim?

Usually not. Section 60H removes the cap entirely when the jury finds a substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or other special circumstances. Serious injury and wrongful death claims generally support that finding; the cap binds mainly in cases of temporary or minor harm.

The mechanism matters: the cap is not raised for qualifying injuries, it is removed, so a catastrophic claim is uncapped. Underwriting evaluates whether the injury supports the qualifying finding and treats the $500,000 figure as the ceiling only where it does not. Economic damages are never capped, and section 6B interest at 12 percent runs on top of any capped award.

Why does 12 percent mandatory interest matter for a Massachusetts plaintiff considering funding?

Section 6B adds 12 percent annual interest to a verdict from the filing date, and it stacks on top of any cap. A plaintiff who can afford to reach verdict is compensated for the delay at a rate well above market, which raises the cost to the defense of holding out and shortens the path to a serious settlement offer.

The interest applies to a judgment, not to a settlement, so its effect on a funded claim is as settlement pressure. Underwriting treats section 6B as a factor supporting a shorter duration for a well-supported claim rather than as recoverable value. The presuit notice and tribunal stages delay the filing date from which interest runs, which counsel weighs in timing the complaint.