To channel cases into ordinary negligence or medmal, look to implications for medmal insurance, court says

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A Massachusetts court sometimes might have difficulty distinguishing between claims of ordinary negligence and claims of medical malpractice, only the latter of which must be filed first with a special tribunal. If a case implicates medmal insurance, it's more likely the latter, a court reasoned in May.

The Appeals Court had little difficulty, though, finding that a complaint over life-threatening allergic reaction to a drug administered in the emergency room sounds in medical malpractice. The plaintiff therefore erred by failing to file with the commonwealth medmal tribunal and post the necessary bond before proceeding in the Superior Court.

The court demarcated the boundary between ordinary negligence and medmal claims with reference to the legislative purpose in creating the tribunal: "to guarantee the continued availability of medical malpractice insurance." A court may be guided also by factors derived from case law: "(1) whether medical or professional judgment or competence was exercised, ...  (2) whether the claim is 'treatment-related,' even if not a traditional malpractice claim, ... and (3) whether 'the same set of facts supports both' the medical malpractice and allegedly non-medical claims...."

The instant plaintiff's "claims centered on her arriving at the emergency room suffering from an asthma attack, and the hospital's failure to provide a proper medication to her, which resulted in a severe allergic reaction. More specifically, the hospital was alleged to have deviated from the 'standard of care' by administering a medication containing lactose to [plaintiff,] who had a lactose allergy known to the hospital." The implication of medical judgment plainly positioned the case in medmal.

The case is Lane v. Winchester Hospital, No. 21-P-476 (Mass. App. Ct. May 17, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.