MALPRACTICE; MEDICAL MALPRACTICE;

MALPRACTICE;

You asked the following questions regarding the Massachusetts medical malpractice screening process as a follow-up to OLR Report 2003-R-0607:

1. when does the hearing before the screening tribunal take place;

2. what are the qualifications, if any, for the attorney member of the tribunal;

3. is the tribunal’s proceeding a trial in which witnesses are called;

4. what does the tribunal find and are these findings admissible in a subsequent malpractice case;

5. what is the standard of proof;

6. when was the requirement that the plaintiff post $ 6,000 bond in order to proceed with the malpractice claim if the tribunal finds for the defendant adopted and why was that figure chosen; and

7. often do judges increase the amount of the bond, and what is the highest to which they raise it; and

8. how many cases are settled or dropped after the tribunal conducts its hearing.

You also asked how many cases are hear by the tribunals annually. There is no statewide data; we expect to get data for Suffolk County (Boston and nearby suburbs) soon, and will forward it to you upon receipt. OLR Report 2003-R-0871 describes the medical malpractice screening process in Maine.

MEDICAL MALPRACTICE SCREENING TRIBUNALS

As described in OLR Report 2003-R-0607, a tribunal consisting of a judge, physician, and attorney must hear each action for medical malpractice or health care provider error or mistake. By law, the tribunal is supposed to hear the case within 15 days after the defendant has filed his answer, although in practice the hearing is often later, according to Saliha Khalja of the general counsel’s office of the Massachusetts Medical Society. There are no qualifications required of the attorney member of the tribunal other than that he be authorized to practice law in the state. The physician must be licensed and must practice outside of the county where the defendant practices. The attorney and physician receive $ 50 for each case, and are named by the state bar association and medical society, respectively.

The tribunal proceeding is analogous to a motion hearing in which the parties do not call witnesses. By law, the issue before the tribunal is whether the evidence presented to it, 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. The plaintiff must submit an offer of proof. Either party can submit evidence, such as hospital records, published articles, and letters from experts. The experts are not normally required to appear before the tribunal. The tribunal can, on its own motion or upon the application of either party, subpoena such records. It can also summon witnesses, although it appears that this is uncommon.

In evaluating the plaintiff’s offer of proof, the tribunal must apply the standard that a court would use to determine whether to allow a defendant’s motion for a directed verdict. Under this standard, the tribunal must conclude that the offer of proof raises issues appropriate for litigation if anywhere in evidence, from whatever source, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff (St. Germain v. Pfeiffer 637 N. E. 2d 848, 418 Mass. 511, on remand 2 Mass. L. Rptr. 625(1994)). The tribunal’s findings are admissible at trial.

If the tribunal finds for the defendant, the plaintiff can only pursue the claim through the usual judicial process if he files a bond of $ 6,000. The bond requirement was originally $ 2,000 when the law was adopted in 1975. It was raised to $ 6,000 in 1986 at the request of the state medical society, which had argued that $ 2,000 was insufficient to discourage frivolous lawsuits. The court can increase the bond level, but it appears that this rarely happens.

Approximately 15% of cases are dropped following the tribunal hearing, according to Khalja. We were unable to determine how many cases were subsequently settled.

KM: ro