CONFIDENTIAL MEDICAL MALPRACTICE SETTLEMENT AGREEMENT AND MUTUAL RELEASE
[Commonwealth of Massachusetts]
TABLE OF CONTENTS
- Document Header............................................................. 2
- Definitions.................................................................. 3
- Operative Provisions......................................................... 5
- Representations & Warranties................................................. 7
- Covenants & Restrictions..................................................... 8
- Default & Remedies........................................................... 9
- Risk Allocation............................................................. 10
- Dispute Resolution.......................................................... 11
- General Provisions.......................................................... 12
- Execution Block............................................................ 14
Page numbers are for drafting convenience only and should be updated after final formatting.
1. DOCUMENT HEADER
This Confidential Medical Malpractice Settlement Agreement and Mutual Release (the “Agreement”) is entered into and made effective as of [EFFECTIVE DATE] (the “Effective Date”) by and among:
- [CLAIMANT FULL LEGAL NAME], an individual with a principal address at [ADDRESS] (“Claimant”); and
- [DEFENDANT HEALTH CARE PROVIDER LEGAL NAME], a [corporation / professional corporation / limited liability company / individual practitioner] licensed to practice medicine in the Commonwealth of Massachusetts, with a principal address at [ADDRESS] (“Provider”); and
- [INSURER NAME], a liability insurer duly admitted in Massachusetts, NAIC No. [●], with a principal address at [ADDRESS] (“Insurer,” and together with Provider, “Defendants”).
Claimant and Defendants are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
A. Claimant has asserted claims for medical malpractice (the “Claims”) against Provider arising out of medical services rendered on or about [DATE(S)] at [FACILITY/LOCATION] (the “Incident”).
B. The Claims are, or could be, the subject of an action styled [CASE CAPTION], docket number [DOCKET NO.], pending in the [COURT / TRIBUNAL] (the “Action”).
C. WITHOUT ADMISSION OF LIABILITY, the Parties desire to fully, finally, and forever settle the Claims, the Action, and all related matters upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
2. DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings set forth below. Any capitalized term used but not defined herein shall have the meaning ascribed to it in the section where first used.
“Action” has the meaning set forth in Recital B.
“Agreement” means this Confidential Medical Malpractice Settlement Agreement and Mutual Release, together with all Exhibits and Schedules hereto.
“Applicable Law” means all federal, state, and local statutes, regulations, and common law governing medical malpractice claims in the Commonwealth of Massachusetts, including, without limitation, M.G.L. c. 231, §§ 60B–60L, and the federal National Practitioner Data Bank (“NPDB”) reporting regulations at 45 C.F.R. Part 60.
“Damages Cap” means the statutory limitation on noneconomic damages imposed by M.G.L. c. 231, § 60H (currently Five Hundred Thousand Dollars (US $500,000), subject to statutory exceptions).
“Defendants” has the meaning set forth in the Document Header.
“Effective Date” has the meaning set forth in the Document Header.
“Escrow Agent” means [ESCROW AGENT NAME], designated to hold and disburse funds in accordance with Section 3.
“Periodic Payments” means those payments, if any, made on a periodic basis pursuant to Section 3.4 in compliance with Massachusetts structured settlement requirements.
“Releasees” means (i) Provider and its past, present, and future parents, subsidiaries, affiliates, officers, directors, employees, agents, and insurers; (ii) Insurer and its parents, subsidiaries, affiliates, officers, directors, employees, agents, and reinsurers; and (iii) any other person or entity that could be liable for the Claims.
“Releasor” means Claimant, Claimant’s heirs, executors, administrators, successors, and assigns.
[// GUIDANCE: Add additional defined terms as needed to reflect factual complexity (e.g., “Minor Claimant,” “Special Needs Trust,” etc.).]
3. OPERATIVE PROVISIONS
3.1 Settlement Payment
a. Settlement Amount. Defendants shall pay Claimant the total gross sum of US $[SETTLEMENT AMOUNT NUMERICAL] (the “Settlement Amount”), inclusive of all economic and noneconomic damages, attorneys’ fees, costs, interest, and liens.
b. Allocation. The Parties stipulate that US $[NONECONOMIC PORTION ≤ 500,000] of the Settlement Amount represents noneconomic damages, subject to the Damages Cap, and US $[ECONOMIC PORTION] represents economic damages.
c. Funding. Within [NUMBER] business days after the later of (i) the Effective Date and (ii) receipt of all fully executed settlement documents and court approvals, Defendants shall remit the Settlement Amount by wire transfer to the Escrow Agent pursuant to wire instructions set forth on Exhibit A.
[// GUIDANCE: Consider Medicare/Medicaid conditional payment resolution and ERISA lien negotiations in subsection (c).]
3.2 Satisfaction of Liens
Claimant shall be solely responsible for the satisfaction and discharge of all statutory, contractual, and common-law liens, including but not limited to Medicare, Medicaid/MassHealth, ERISA plans, and medical provider liens. Claimant agrees to indemnify and hold Releasees harmless from any failure to satisfy such liens.
3.3 Court Approval and Minor/Incapacitated Parties
If approval is required under Massachusetts law (e.g., where Claimant is a minor or incapacitated person), the Parties shall jointly petition the [NAME OF COURT] for approval of this Agreement. The Settlement Amount shall be paid into court or otherwise in accordance with the approval order.
3.4 Structured Settlement / Periodic Payments (Optional)
a. Election. The Parties [elect / do not elect] to structure a portion of the Settlement Amount into Periodic Payments.
b. Structure Terms. If elected, Exhibit B shall set forth: (i) the periodic payment schedule, (ii) the qualified assignment company, (iii) the annuity issuer, and (iv) proof of compliance with all requirements of the Massachusetts Structured Settlement Protection Act and IRC § 130.
c. Non-Acceleration. The Periodic Payments are non-assignable, non-commutable, and non-accelerable except as expressly permitted by Applicable Law and approved by a Massachusetts court of competent jurisdiction.
[// GUIDANCE: Insert special-needs trust provisions where necessary to preserve governmental benefits for disabled Claimants.]
3.5 Conditions Precedent
This Agreement and the obligations of Defendants to pay the Settlement Amount are subject to:
1. Execution of mutual releases in the form attached as Exhibit C;
2. Dismissal with prejudice of the Action pursuant to Section 5.2; and
3. Receipt of any required court or tribunal approvals.
3.6 No Admission of Liability
The Parties acknowledge that Defendants expressly deny all liability and that this Agreement is a compromise of disputed claims to avoid the costs and uncertainties of litigation. This Agreement shall not be construed as an admission of liability by any Party.
4. REPRESENTATIONS & WARRANTIES
Each Party represents and warrants to the other that, as of the Effective Date:
4.1 Authority. It has full legal right, power, and authority to enter into and fully perform this Agreement.
4.2 No Assignment. It has not assigned or otherwise transferred any interest in the Claims or any rights that are the subject of this Agreement.
4.3 Voluntariness. It is entering into this Agreement voluntarily, without duress or undue influence, and after consultation with, or opportunity to consult with, legal counsel.
4.4 Accuracy of Information. All information provided in connection with settlement negotiations, including but not limited to lien information, is true, complete, and correct in all material respects.
The representations and warranties set forth in this Article 4 shall survive the Effective Date.
5. COVENANTS & RESTRICTIONS
5.1 Confidentiality
Except as required by Applicable Law or court order, the Parties shall keep the terms and existence of this Agreement strictly confidential. Permitted disclosures include (i) to tax advisors, attorneys, insurers, and lienholders bound by confidentiality obligations, and (ii) to governmental authorities to satisfy mandatory reporting obligations described in Section 5.3.
5.2 Dismissal of Action
Within [NUMBER] business days after satisfaction of the conditions precedent in Section 3.5, the Parties shall file a stipulation of dismissal with prejudice of the Action, each Party to bear its own costs and attorneys’ fees except as otherwise provided herein.
5.3 Mandatory Reporting
a. NPDB and State Reporting. Defendants shall file any required reports with the NPDB and the Massachusetts Board of Registration in Medicine within the time frames prescribed by 45 C.F.R. § 60.7 and 243 CMR 3.07, respectively.
b. Cooperation. Claimant shall execute all documents reasonably requested to facilitate statutory reporting obligations.
[// GUIDANCE: Modify subsection (a) if Provider is a non-physician entity not subject to BORIM reporting.]
6. DEFAULT & REMEDIES
6.1 Events of Default
The following shall constitute an “Event of Default”:
a. Failure of Defendants to timely fund the Settlement Amount;
b. Failure of Claimant to timely dismiss the Action as required under Section 5.2; or
c. Material breach by any Party of a representation, warranty, or covenant contained herein.
6.2 Notice and Cure
The non-defaulting Party shall provide written notice of default specifying the nature of the default. The defaulting Party shall have [10] business days from receipt of such notice to cure the default before the remedies in Section 6.3 become available.
6.3 Remedies
a. Specific Performance. The non-defaulting Party may seek specific performance of this Agreement in the [COUNTY] Superior Court.
b. Entry of Judgment. If Defendants default on payment obligations and fail to cure, Claimant may file this Agreement and an affidavit of default to obtain an immediate judgment for the unpaid balance plus prejudgment interest at the Massachusetts statutory rate.
c. Fees and Costs. The prevailing Party in any action to enforce this Agreement shall be entitled to reasonable attorneys’ fees and costs.
7. RISK ALLOCATION
7.1 Mutual Release
a. Release by Claimant. Effective upon receipt of the Settlement Amount, Claimant irrevocably and unconditionally releases Releasees from any and all Claims arising out of or relating to the Incident, whether known or unknown, suspected or unsuspected.
b. Release by Defendants. Effective upon dismissal of the Action, Defendants release Releasor from any and all claims arising out of the filing or prosecution of the Action.
7.2 Limitation of Liability
The liability of Defendants with respect to the Claims shall not exceed the Settlement Amount.
7.3 Indemnification of Releasees
Claimant shall indemnify, defend, and hold Releasees harmless from any claims by lienholders, governmental agencies, or other third parties asserting a right to any portion of the Settlement Amount.
7.4 Force Majeure
No Party shall be liable for delay or failure in performance caused by acts of God, war, terrorism, or other events beyond the Party’s reasonable control; provided that prompt written notice is given and reasonable efforts to mitigate are undertaken.
8. DISPUTE RESOLUTION
8.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict-of-laws rules.
8.2 Forum Selection
The Parties consent to exclusive jurisdiction and venue in the [COUNTY] Superior Court of the Commonwealth of Massachusetts for any dispute arising under or relating to this Agreement.
8.3 Arbitration (Optional)
[OPTIONAL—STRIKE IF NOT ELECTED] Any controversy or claim arising out of or relating to this Agreement shall, at the election of [EITHER / BOTH] Parties, be settled by binding arbitration administered by JAMS in Boston, Massachusetts, in accordance with its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court of competent jurisdiction.
8.4 Jury Waiver (Optional)
[OPTIONAL—STRIKE IF NOT ELECTED] THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
9. GENERAL PROVISIONS
9.1 Amendment and Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by all Parties.
9.2 Assignment. No Party may assign its rights or delegate its duties hereunder without the prior written consent of all other Parties, except that Defendants may assign payment obligations to a qualified assignee for Periodic Payments in accordance with Section 3.4.
9.3 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
9.4 Severability. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed to the minimum extent necessary to render it valid and enforceable, and the remaining provisions shall remain in full force and effect.
9.5 Integration. This Agreement, including all Exhibits and Schedules, constitutes the entire agreement among the Parties concerning the subject matter hereof and supersedes all prior negotiations and understandings, whether written or oral.
9.6 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures transmitted by facsimile, PDF, or electronic signature platform (e.g., DocuSign) shall be deemed originals for all purposes.
10. EXECUTION BLOCK
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.
| PARTY | SIGNATURE | NAME & TITLE | DATE |
|---|---|---|---|
| Claimant | _______ | [PRINT NAME] | _____ |
| Provider | _______ | [PRINT NAME / TITLE] | _____ |
| Insurer | _______ | [PRINT NAME / TITLE] | _____ |
[Notary Acknowledgment, if required under Massachusetts law, to be inserted here.]
EXHIBIT A
Wire Instructions to Escrow Agent
EXHIBIT B
Structured Settlement / Periodic Payments Schedule (if applicable)
EXHIBIT C
Form of Mutual Release
[// GUIDANCE: Verify that all exhibits are attached and fully completed prior to circulation for signature.]