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11/16/77 LYNN MARIE PARO & ANOTHER v. LONGWOOD

November 16, 1977

LYNN MARIE PARO & ANOTHER
v.
LONGWOOD HOSPITAL



Suffolk. Civil action commenced in the Superior Court on May 10, 1976. A motion to dismiss was heard by Dimond, J., following a report by a medical malpractice tribunal. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Wilkins, JJ.

SYLLABUS BY THE COURT

Medical Malpractice. Negligence, Medical malpractice. Constitutional Law, Separation of powers, Equal protection of laws. Due Process of Law, Medical malpractice tribunal, Bond, Jury trial.

The opinion of the court was delivered by: Quirico

General Laws c. 231, § 60B, which requires that all actions alleging medical malpractice be presented to a tribunal charged with determining, on the basis of an offer of proof made by the plaintiff, whether "a legitimate question of liability appropriate for judicial inquiry" is presented and, on a finding that such a question does not exist in a plaintiff's case, imposing a bond on the plaintiff as a condition for further prosecution, bears a rational relationship to a proper legislative objective and does not deny a plaintiff equal protection of the laws in that it neither subjects victims of other torts to such a procedure nor requires imposition of a bond on defendants. [648-651]

The requirement of G. L. c. 231, § 60B, that, as a condition for further prosecution, a bond be imposed on a plaintiff whose medical malpractice claim is found to have no legal merit does not violate due process of law [651-654]; nor does it infringe on a plaintiff's rights under art. 11 of the Massachusetts Declaration of Rights [654]; nor does the bond requirement impair the substance of a plaintiff's right to a jury trial under art. 15 of the Massachusetts Declaration of Rights [654-655]; nor does the tribunal procedure of c. 231, § 60B, abrogate any substantive right of recovery without providing a reasonable alternative [655].

The tribunal procedure for medical malpractice suits established by G. L. c. 231, § 60B, does not constitute a legislative obstruction to a judicial hearing in violation of art. 30 of the Massachusetts Declaration of Rights [655-657]; nor does it violate art. 30 in allowing the two lay panel members to override the Judge since the Judge-member has the sole responsibility for deciding purely legal questions [657].

This case presents, as a matter of first impression, *fn1 constitutional challenges to G. L. c. 231, § 60B, which establishes a procedure for the screening, by a tribunal, of all actions for "malpractice, error or mistake against a provider of health care." See St. 1975, c. 362, § 5. The plaintiffs' medical malpractice action was dismissed when they failed to satisfy a $2,000 bond requirement imposed on them, after a tribunal hearing, as a condition for the continuance of their action. They have appealed the dismissal, contending that the tribunal procedure violates equal protection, due process, and separation of powers provisions of the Massachusetts and United States Constitutions. We granted an application for direct appellate review. G. L. c. 211A, § 10 (A).

Robert Paro brought this action in his own right and as next friend for his daughter Lynn Marie. Lynn Marie was born on the premises of the defendant Longwood Hospital (hospital), and employees of the hospital aided in her delivery. The plaintiffs assert that, following the birth, these employees negligently applied silver nitrate to Lynn Marie's eyes, *fn2 and negligently failed to administer proper care to correct their mistake after the improper application. They contend that this negligence resulted in a scar on Lynn Marie's left cheek which remains visible to this day. *fn3

Following the filing of the complaint and answer, both parties appeared before a malpractice tribunal constituted pursuant to G. L. c. 231, § 60B, the recently enacted medical malpractice tribunal procedure. The plaintiffs made an offer of proof and the hospital report and some photographs of Lynn Marie were entered in evidence. The panel decided for the defendant, holding "that the evidence submitted by the plaintiff, even if properly substantiated, not sufficient to raise a legitimate question of liability appropriate for judicial inquiry." A bond of $2,000 was imposed on the plaintiffs as a condition for continuance of the action. A motion for reduction of the bond amount, on grounds of financial hardship, was denied. When the plaintiffs did not file the bond within the allotted period, the action was dismissed.

General Laws c. 231, § 60B, was enacted in 1975 as part of a comprehensive package designed to ensure the continued availability of medical malpractice insurance at a reasonable cost. St. 1975, c. 362. Section 60B requires that all actions alleging medical malpractice be presented, within fifteen days of the filing of the defendant's answer, to a tribunal consisting of a Superior Court Judge, an attorney, and a representative of the health care industry, *fn4 the latter two appointed by the Judge. The tribunal is charged with determining, on the basis of an offer of proof made by the plaintiff, whether "a legitimate question of liability appropriate for judicial inquiry" is presented. If the panel decides that such a question does not exist in a plaintiff's case, and thus finds for the defendant, the Judge-member is required to impose a bond on the plaintiff as a condition for further prosecution. The bond is payable to the defendant for his costs if he ultimately prevails. The statute specifies that the bond amount be set at $2,000, but provides discretion to the Judge to increase the amount or, if he finds that the plaintiff is indigent, to decrease it. If the plaintiff does not file the required bond within thirty days, the action must be dismissed. Austin v. Boston Univ. Hosp., 372 Mass. 654, 661 (1977).

The Paros attack the statutory procedure by alleging that it is in violation of the Constitutions of both Massachusetts and the United States on equal protection, due process, and separation of powers grounds. We deal with each claim to the extent that it is properly raised in this case, and find no constitutional impediment.

1. Equal protection of the laws. The plaintiffs contend that two classifications made by the tribunal statute -- medical malpractice victims versus victims of other torts, and plaintiffs versus defendants *fn5 -- violate their rights to equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and comparable provisions of the Massachusetts Constitution. We disagree.

Classification is an integral part of the legislative task and will not be interfered with by a judicial body unless the distinctions drawn by the enactment are "arbitrary or irrational," or result in "invidious" discrimination. Pinnick v. Cleary, 360 Mass. 1, 28 (1971). Two standards of review have been developed to Judge the arbitrariness and invidiousness of legislative acts. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973). The first test, applied whenever a legislative discrimination "trammels fundamental personal rights or is drawn upon inherently suspect distinctions," Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977), quoting from New Orleans v. Dukes, 427 U.S. 297, 303 (1976), requires, for the sustenance of the statute, a showing that the difference in treatment is necessary to the promotion of a compelling State interest. Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542 (1974). Shapiro v. ...


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