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A Look at the Massachusetts Malpractice Tribunal System

Published online by Cambridge University Press:  24 February 2021

Walter H. McLaughlin
Walter H. McLaughlin*
Affiliation:
Superior Court of the Commonwealth of Massachusetts (retired).
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Abstract

In this Oration, the retired Chief Justice of the Massachusetts Superior Court offers some personal observations on the American medical malpractice crisis and examines the Massachusetts malpractice tribunal system, which is aimed at reducing the incidence of malpractice litigation that is either frivolous or involves simply an “unfortunate medical result” for which the health care provider should not be held accountable. First, the author relates some of his impressions of the evolution of the malpractice crisis and identifies its salient characteristics. Next, he provides a description and an evaluation of the Massachusetts tribunal system. Under that system, the plaintiff in any malpractice action must argue before a special tribunal—composed of a Superior Court judge, an attorney, and a surgeon—that his case raises a “legitimate question of liability.” If the tribunal finds that such a question exists, the plaintiff may pursue his case in the normal manner. But if the tribunal finds that the case involves “merely an unfortunate medical result,” and if the plaintiff still wishes to press his claim, he must, before proceeding, post a $2,000 bond, which is used to help pay the defendant’s litigation costs if the defendant prevails at the trial. The author offers data to support his contention that this tribunal system already is screening out a significant number of inappropriate malpractice claims. Nevertheless, he suggests that the system has substantial problems. He identifies those problems, and proposes methods for solving them.

Type
ASLM Annual Oration
Information
American Journal of Law & Medicine , Volume 3 , Issue 2 , Summer 1977 , pp. 197 - 207
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1977

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Footnotes

This paper is adapted from the American Society of Law & Medicine’s Annual Oration, delivered by Chief justice McLaughlin at the Society’s Annual Meeting on June 3, 1977, on the occasion of his receiving, along with former Secretary of Health, Education, and Welfare Elliot S. Richardson, the Society’s Honorary Lifetime Membership Award for distinguished contributions to medicolegal education.

References

1 If it is any consolation to doctors, the Bar is now where the medical profession was a generation ago. Clients are learning to sue lawyers.

2 MASS. GEN. LAWS ANN. ch. 231, § 60B (West). The tribunal provision was one of several statutory provisions enacted on June 19, 1975, and aimed at alleviating the malpractice crisis in Massachusetts. Other provisions included a prohibition against the inclusion of an “ad damnum or monetary amount claimed” in a malpractice complaint, id., § 60C; a three-year statute of limitations for tort or contract claims by minors against health care providers arising from professional services or health care (except that minors under six have until their ninth birthday to bring such claims), id., § 60D; a stipulation that in actions against health care providers the court may appoint an appropriate medical specialist to examine the plaintiff if the plaintiff has not made his own arrangements for a physical examination, id., §60E; and the establishment of a joint malpractice insurance underwriting association, id., ch. 175A, § 5A.

3 Id., ch. 231, § 60C.

4 Summaries of a number of recent cases testing the constitutionality of one or more provisions of various state malpractice statutes are provided in Note, A Report on Aiedical Malpractice Legislation and Related Court Decisions, STATE HEALTH LEGISLATION REPORT, May 1977, at 18-25 [published by the Legislative Department, Public Affairs Division, American Medical Association]; and in Gold, Judicial Review of Malpractice Legislation: The Story So Far, MEDICOLEGAL NEWS, Winter 1977, at 5-6 [published by the American Society of Law & Medicine].