*1 Mass. 410 Kopycinski, administratrix,1 Catherine P. vs. Bernard &
Aserkoff others.2 - Suffolk. 1991. June April 1991. J„ Lynch. Greaney. JJ.
Present: C & Liacos. Abrams. Nolan. Tribunal, Malpractice, Hospital. Negligence, malprac- Medical Medical tice, Doctor, Hospital. sitting malpractice A with- as a member of a medical tribunal was power plaintiffs was sufficient to raise out to rule that the liability inquiry, a for where of the tribunal found otherwise. [412-416] J., Abrams, concurring. tribunal, malpractice plaintiffs A a medical which before expert’s expressing opinion affidavit included medical inguinal diagnose for hernia fell failure to and treat the decedent an average qualified practitioner below the of the standard care physicians participating each in the decedent’s care was re- death, legitimate question sponsible for his was sufficient to raise liability appropriate judicial inquiry. [416-418] allegedly negligent hospital responsible whether was physicians beyond competence conduct of was a medi- individual cal tribunal. [418-419]
Civil Court Superior Depart- action commenced ment on November 1989. was a medical malpractice
After case considered by tribunal, appeal prosecute interlocutory leave Warner, P. by Joseph granted in C.J. The Court Appeals on its own Judicial Court transferred case Supreme initiative. Joseph Kopycinski.
1Of the estate of V. Doe, Wood, Doe, Cyrus Hopkins, John Richard 2Lawrence C. C. Hospital. Massachusetts General j Kopycinski v. Aserkoff. *2 Kenney, him) J. T. for
Raymond (Mary Jr. Gibbons the defendants. M. the
Enid Starr for plaintiff. Nolan, J. we are to address the Today relationship asked the three members of a medical tribunal among malpractice convened G. (1988 ed.). to L. 60B pursuant Specifi- c. we are faced with the whether the decision of cally, a medical to tribunal as of a plaintiff’s offer must conform conclusion member, tribunal’s views spite contrary of the medical and We members. rule that the decision of a majority of the members shall determine the find- ing Therefore, of the tribunal. judge sitting a member of the tribunal was without power to rule that the plaintiff’s offer of proof was sufficient to raise a legitimate liability where a inquiry However, the panel found otherwise. since the issue is fully us, briefed and legitimately before we take this opportunity to review the offer of proof made We deter- plaintiff. mine that the plaintiff’s sufficient the plaintiff should have been allowed to without proceed bond, posting We, consistent with the decision entered. therefore, affirm.
The plaintiff’s claim arises from the treatment of the husband, plaintiff’s V. Joseph decedent while Kopycinski, he was a at patient (MGH). Massachusetts Hospital General 31, 1986, On December the decedent went to MGH’s emer- ward gency eat, complaining vomiting, and ex- inability cessive loss. The weight decedent was examined defendant Hopkins, who admitted the hospital. decedent There- after, Aserkoff, Dr. Hopkins consulted with Dr. also a de- fendant, as to the decedent’s treatment. Dr. AserkofFs notes concerning the decedent appear throughout the medical records. tests, Dr. Aserkoff ordered a number of including CT-Scan, abdominal to determine the cause of the decedent’s condition. Although the CT-Scan showed evidence of an in- hernia, guinal the defendant physicians failed allegedly cause of the decedent’s determine that the hernia was the medical problems. 6, 1987, before his January twenty-four
On less than hours death, the defendant doctors obtained a consultation surgical Dr. Dr. Carter recommended an exploratory from Carter. was stabilized. On after the decedent’s condition laparotomy 7, 1987, inpatient the decedent while an at January died MGH. 20, 1989, November Catherine plaintiff, Kopycin-
On ski, de- filed complaint malpractice against the defendants had alleged fendants. The complaint *3 the decedent’s medical failed to and treat properly identify condition, as a result damages and that the decedent suffered 26, 1990, malpractice of this failure. On March a medical L. c. (tribunal), tribunal convened to G. pursuant 60B, to review the of The tribunal plaintiff’s § Su- judge consisted of a an and a the physician, attorney, in favor Court. The and the found perior attorney physician however, major- the judge, of each defendant. The overruled law, that, a offer of ity, stating plaintiff’s as matter the plaintiff sufficient. The then ordered that proof a could with her case without bond. proceed posting to G. L. c. The defendants filed a petition pursuant (1988 ed.), for review of the tribunal’s interlocutory leave single granted A of the Court findings. justice Appeals to to this We trans- appeal. the defendants file interlocutory We determine that ferred the case on our own motion. had no to overrule judicial power member of the tribunal decision of the of the panel. (1988 ed.), provides
General Laws c. 60B§ a screening tribunal. by claims medical states, malpractice, statute in action for part, “[ejvery be against error or mistake a of health care shall provider single supe- of a consisting justice heard a tribunal court, rior licensed medicine physician practice section two of chapter commonwealth under the provisions attorney prac- one hundred and twelve and an authorized commonwealth, law the at which hearing tice shall present an and said tribunal shall deter- mine if the evidence if is presented properly substantiated sufficient raise a question liability appropri- ate for judicial or whether the is inquiry case plaintiff’s merely unfortunate medical result.” The provides statute that, defendant, if the tribunal finds for the the plaintiff may pursue the claim through regular process, but $6,000. only upon filing bond in the amount of The plaintiff argues that question which the is tribunal and, ultimately legal thus, asked to resolve is a one solely within the purview member of the tribunal. The defendants on our decision in Paro v. rely Longwood Hosp., that the arguing the tribunal is not and should decided be the majority vote of the tribunal. We agree the defend- ants. The question to be decided by the ultimately tribunal statute, factual one. The plain meaning of the and the leg- islative guidelines for interpreting statutes which involve tribunals, make it clear Legislature that the intended that a majority vote of the tribunal would determine whether a plaintiff’s offer of is sufficient.
The words of the statute suggest themselves that the tribu- *4 nal’s decision is a factual legal and not a determination. Words such as “legitimate” “appropriate,” which are used to describe the standard of suggest determina- proof, of Moreover, tions fact. the statute repeatedly refers to the “finding” tribunal, again once that the task suggesting of the tribunal is a fact-finding mission. most Perhaps telling “either,” is the “or” language used the tri- framing the bunal’s task. The tribunal determines whether the is evidence “sufficient to raise a legitimate liability appropri- ate for judicial or inquiry whether the is plaintiff’s case merely an unfortunate medical result” (emphasis supplied). Surely the determination whether a medical result is merely “unfortunate” is a legal not determination. The mean- plain ing of the words used suggests within the the statute task of the tribunal is fact-finding, for which the judicial
Kopyoihski or medical legal member is no better than the equipped member.
Furthermore, as the issued clear rules Legislature has 60B, c. is to be interpreted. how a statute such as § that, (1988 ed.), unless such provides General Laws c. 6§ the manifest in- a construction would be “inconsistent with to the context of law-making tent of the or body repugnant give joint statute .... au- purporting same [w]ords to, of- by, public or to direct act three or more any thority shall be construed as such au- persons giving ficers or other to, of such directing by, majority or such act thority It this that the Leg- officers or is clear from statute persons.” that, tribunal in G. L. islature intended by setting up 60B, if “said shall determine stating c. tribunal § sufficient,” ... that a vote presented the evidence determine the decision of the tribunal members would added). (emphasis tribunal meaning “said tribunal shall de- plain language whole, par- and not one
termine” that the tribunal says member, shall make the determination. When the ticular Legislature member to have judicial specific intended for tribunal, so it said For regard explicitly. powers instance, is to select the health 60B provides as co- and the who are to serve professional attorney service tribunal; also that the provides members on the the section or the amount may member increase decrease bond to be filed.
We member of the tribunal would note that is- deciding certainly solely purely be responsible 656-657 Hosp., sues. Paro v. Longwood argument that the tribunal rejected plaintiffs Declaration of statute violated art. 30 the Massachusetts Rights allows the two members to over- lay panel because it *5 court ride the of issues. The Paro legal decision service representa- stated that and the health lawyer “[t]he in rele- tive are on the because their placed expertise panel in deciding is useful expertise primary vant fields. This — has whether the question plaintiff faced the tribunal by v, Aserkoff. presented legally sufficient claim. As to the determination issue, one, of this tribunal decision is collective with all three members panel participating The equally. responsibility however, for deciding purely legal is left questions, solely tribunal, with the judge-member and thus no interfer- ence with his function (Emphasis occurs.” Id. at supplied.) 657. The set forth in Paw is proposition that the primary question the tribunal must answer not legal is, therefore, members, to be decided collectively by with all three as equal participants. Decisions such the ad- missibility evidence to the tribunal would fall proffered the purely category judi- to be determined cial member only. later, Rosenthal,
One in year Little v. (1978), we clarified the standard which the tribunal is judge the plaintiff’s offer of We determined that the language set forth in the statute that the tribunal to “de- termine if the evidence presented ... is sufficient to raise a liability in- quiry” or whether the plaintiffs case is merely an unfortu- nate medical result made it “clear that the tribunal’s man- date is to Therefore, evaluate evidence.” Id. at 578. we that, determined in Little in light language, this the tribu- nal’s task is comparable to a trial judge’s function in ruling on a motion for a directed verdict. contends that Little set forth the proposition
that the tribunal’s standard is that of a motion for a directed
and,
verdict
standard,
since this is a legal
the judge should
make the final decision. We disagree. We stated in Little
that the standard by which a tribunal would evaluate evi-
dence could be
to” the standard
“compared
for a directed
verdict. We did
say
not
that the standards were one and the
Indeed,
Little,
same.
merely
were
to clarify
attempting
the standard in
light erroneous argument that the stan-
dard was the equivalent to that for a motion to dismiss under
Mass. R. Civ.
(b) (6),
P. 12
Kopycinski 12 (b) (6) verdict is to a rule directed standard than it standard.
Moreover, in v. Hubbard Regional our decision Broadard Mass. 1012 our determination supports Hosp., to a decision as a whole. In the tribunal must come Broadard, it was clear that the member felt that the would be sufficient to raise a ques- offer and that he judicial inquiry, tion of liability appropriate Therefore, the did judge to find the not intended plaintiff. tribunal, seeing it as a “needless exercise.” We convene the that, even the stating though reversed the decision judge’s certain, among the statute called for an judge interplay was Here, we determine judicial, legal, the and medical members. 231, 60B, convening c. not of the tribu- only requires § nal, also in which all three members an interplay play but the outcome. determining role equal 60B, so is to be read require General Laws c. To deter- vote of the panel. determination by is that the -tribunal convened to mine that the very for the member to judge answer is question, purely decide, meaning of the stat- would be to the repugnant plain ute, set forth rules of construction statutory which states the decision Legislature, to our decision in Paro collective, reading of the stat- be and to a commonsense sum, of the tribunal had no ute. member mem- overrule the determination of the other power to enough proof had offered plaintiff bers and decide that the a bond. proceed without posting
However, us, we will re- since the issue is before properly to de- plaintiff that was made view that, even if the argues termine sufficiency.3 plaintiff its the court. The sufficiency properly of the evidence is before 3The issue that, authority plaintiff argues if as to the even were incorrect party “A panel, he of the offer was correct on any ground appeal prevails Superior may present on who Court Edison Co. v. Boston . .” Boston . previously which asserted below. Auth., is enti Redevelopment 374 Mass. tled to the court consider this issue. have judge were incorrect as to the he was authority panel, *7 correct on the We agree of the offer of the offer of was sufficient. proof
“A plaintiff’s negligence as to will proof prevail before a tribunal ... if a rela- (1) doctor-patient shown, (2) is if there is tionship evidence that the doctor’s did not conform performance good and practice, Ballantine, (3) if resulted damage therefrom.” Kapp The defendants’ answer admits the allegation of the complaint that all “rendered medical they and care treatment V. while he was an Joseph Kopycinski Thus, in-patient at the Massachusetts General Hospital.” first prong the test is satisfied. As to the second and third prongs, the defendants contend first that the plaintiff’s expert relied on erroneous factual assumptions forming his opin- ion occurred, that negligence and second that the plaintiff did not offer sufficiently particularized proof as to each one of them to establish individual liability.
The plaintiff’s offer of proof included an affidavit of a sur- geon, Dr. Richard E. Kessler. Dr. Kessler opined that failure to diagnose and to treat the decedent for an inguinal hernia fell below the standard of care of the average quali- tied practitioner and caused his death. he stated Specifically, that the treating physician should (1) have diagnosed her- nia as the cause of the lump groin, (2) diagnosed an inguinal hernia as the obstruction, cause of the bowel (3) called for consultation, an early surgical (4) performed an exploratory and laparotomy, (5) a tube put into the dece- dent’s stomach. The defendants contend that Dr. Kessler’s conclusions are based on erroneous factual be- assumptions cause (1) there is evidence in the medical records that an inguinal hernia was diagnosed, did ob- physicians tain a surgical consultation. The plaintiff that it was responds the failure to diagnose the hernia as the cause of the symp- toms, not the failure to diagnose it at all that constitutes the alleged negligence; and that it was the failure to obtain an early surgical consultation that fell below the stan- requisite event, dard of care. In any standard, on a directed verdict must evidence be viewed in the light most favorable to the plaintiff. factual Any as to the dispute “meaning” record is for But jury. assuming even the defendants’ ar- meritorious, gument Dr. Kessler identified two other in- — stances of negligence the failure to do an exploratory lap- arotomy the failure to a tube put in the decedent’s stomach. reject contention that the offer of fails because it is based on erroneous factual assumptions.
The defendants also contend that the did not offer sufficiently particularized as to the negligence each defendant Dr. Kessler’s individually. affidavit asserts that “each of the *8 at the physicians Massachusetts General Hospi- tal who in Mr. participated care and Kopycinski’s treatment and the decision-making concerning his diagnosis and treat- ment was for the responsible referred to and delays for his death.” The defendants contend that the failure to identify each of them by name and to state which acts of specifically theirs were negligent renders the offer insufficient. proof
The affidavit states that each of the physicians participat- ing decedent’s care was for his death. responsible The defendants have admitted that rendered they medical care to Retik, the decedent. Contrast Grassis v. 25 Mass. Ct. App. 604 (upholding directed verdict in favor of ad- mitting who physician took no in care of part patient).
the second of the prong test is satisfied because them, there is evidence that each of as physicians participat- ing care, in the decedent’s “did not conform to good The practice.” third also is prong satisfied because the affida- vit states that the failure to and diagnose treat the decedent Therefore, for an inguinal hernia caused his death. we hold that the two members erred in panel that the deciding plain- tiff’s offer of proof regard the three defend- physician ants is not sufficient to raise a question liability judicial inquiry.
The defendant Massachusetts General Hospital claims that the plaintiff’s offer of is insufficient proof as to it be- cause she “has no produced evidence of on the negligence 419 Mass. or of the of an servant” “The part employee, agent, hospital. was whether the individual defendant person would be responsible whose conduct the defendant hospital Scott, of the tribunal.” beyond competence Flagg [is] Ct. v. Lat App. (1980). See DiGiovanni timer, alleged The that plaintiff was negligent “John Doe” or “Richard Roe” was has a suffi agent employee or of the She also made hospital. cient of the defendants’ proof physician negligence. of their to be hospital is one relationship sorted out at trial. sum, we hold is to be that tribunal’s determination However,
decided vote. determine by majority sufficient. The decision entered below member was that the offer was sufficient for the without proceed posting decision, bond. We affirm that remand the case Court. Superior
So ordered. Abrams, J. I (concurring). agree with the court G. L. c. (1988 ed.), 60B directs a medical tribu- *9 nal to make a collective of the of determination plaintiff’s offer of and proof, that the of the judicial member not overrule the may decision of the other two. I also agree that this scheme is interfer- statutory not improper ence with the in violation of art. power however, Massachusetts of I Rights. disagree, Declaration which, with reasoning the court’s my opinion, unnecessa- rily confuses the legal standards under which these tribunals are to operate. out, 413-414,
As
court
points
ante at
lan-
plain
guage
the statute
shall
if the
(“said tribunal
determine
evidence
is sufficient”),
conjunction
...
read in
presented
with
ed.)
G. L. c.
6 (1988
(directing that
statutes
when
§
confer
on
or
authority
three more
is to
persons
authority
be exercised indicates that the by majority clearly In- medical tribunal’s decision is to be collective. straightforward stead of on this relying interpretation statute, however, its holding by the court to buttress attempts rather than characterizing the tribunal’s decision as a factual the court is to fit its legal trying determination. Apparently set legal up of the statute into the framework interpretation in re- in Paro v. Longwood Hosp., I challenge disagree to the art. 30 therein. sponse posed this effort.
First, distinction between fac- attempts draw coherent mixed nothing tual and mention (to determinations law) of fact have been See historically illusory. questions 29.9, Davis, (2d 5 K.C. Law 365-369 ed. Administrative § Levin, 1984); of Law in Administra- Questions Identifying Law, can be tive 74 Geo. L.J. 9-12 The distinction both See State ex rel. Wiscon- conclusory. manipulable Whitman, sin 196 Wis. Inspection Bureau of pow- that in an strict (noting modify separation attempt doctrines, to find guise power ers courts have used “the The case at delegating judicial power). facts” to laws uphold of fact bar in separating questions illustrates the difficulties holds, 415, that the from of law. The court ante at questions “ to raise a decision whether the offer of ‘is sufficient in- question liability appropriate an unfortunate or whether the case is quiry’ plaintiff’s merely To G. L. c. 60B. result” is a fact. — me, conclusion of law analogous the decision is more to a the defendants the tribunal is not asked to determine what did, did to prove they but whether what the offers reasonable sufficiency. Obviously meets some standard of is one given do differ on whether a people can and ques- of law or not is its value as a only guidepost fact. tionable, to result- readily distinction lends itself too but the oriented analysis.
Second, distinction the court’s insistence on the law-fact cases confuses the task before the tribunal. Our needlessly tri- standard to be have strived to clarify applied Lea, bunal in determining See Blood v. sufficiency. (1988) (“the tribunal must use the same
standard that would use ‘in on a ruling defendant’s Rosenthal, motion for ”), directed verdict’ Little v. quoting Ballantine, 376 Mass. (1978); Kapp forth (setting test to determine three-part the sufficiency of the offer of This effort proof). was not gra- tuitous; it was intended to set forth sufficient guidance for malpractice tribunals so that their decisions would not be ar- bitrary, and so that the standards applied by different tribu- nals to different would plaintiffs as approach uniformity nearly I fear possible. that the court’s opinion undermines that effort. Its characterization of the tribunal’s task as a fact-finding mission suggests a much higher discretionary role for the than I believe the Legislature intended.1 The court’s attempt disavow the directed verdict standard leaves one in the dark as to what standard a tribunal should short, apply. the opinion weakens the very safeguards that have established the fairness and efficiency the procedure.
Third, relying as Paro did on a distinction between ques- tions of law and questions of fact to determine judi- whether cial power has been improperly delegated is misguided. Agencies adjudicate time, disputes all determining “legal rights, duties 30A, or privileges.” See G. L. c. (1) (1988 1§ ed.). The classification of agency action into legal or factual categories does not aid in a determination whether the action is an improper exercise of judicial the mere fact power.
that the tribunal ormay not be may making a factual deter- mination does not determine the constitutionality its actions. 1The analysis flaw in the court’s clearly by illustrated most the court’s review of the offer of correctly The court sets forth the facts in the light most favorable to the applying and then (directed facts, verdict)
standard the court concludes that the offer analysis sufficient. The court’s of the offer of proof is my reasoning, consistent with factual-legal not with the distinction relied on opinion. court in its
422
Kopycinski I would uphold tribunal procedure because the simply “ panel does not usurp judicial The powers. ‘has no au- panel to thority determine violations of substantive ... rights.’ [It] cannot crime, tort, make a binding determination that a or any other actionable event has occurred.” Human Rights Assad, 482, Comm’n Worcester v. 370 Mass. 487-488 Worcester, 136, v. quoting Bloom 363 Mass. 158 Jackson, 904, See Commonwealth v. 369 Mass. 921- (1976) (no separation powers violation where statute does not interfere with “inherent power”). major impact decision panel have on a is to may plaintiff make it more difficult and for her to risky her claim. pursue defendant, See G. L. c. (if 60B panel finds for may $6,000 pursue claim in court only filing of upon bond payable to defendant for costs if defendant prevails). reason, order to this burden within keep has discre- tion to reduce the amount of the bond in cases of required id:, See indigency. v. Harvard Gugino Community Health Plan, (1980) (abuse of discretion not to reduce sufficiently the amount of bond for indigent plaintiff). Moreover, review, the panel’s decision is subject Glixman, either before trial or on See appeal. McMahon 379 Mass. (1979).2 63-64 These safeguards to en- help sure that whatever adjudicatory discretion the does panel have is insulated from sufficiently arbitrariness. See Arling- Arbitration, ton v. Board Conciliation & standards, guidelines, (statutory and procedures “protect against arbitrary action and also a provide proper occasion delegation” to an in- arbitration panel private dividuals). Clearly does not exercise the kind of power binding adjudications make rights substantive that would art. implicate 30.
A review of the cases
jurisdictions considering
from other
constitutionality
tribu-
malpractice screening
2Indeed,
the court’s characterization
of the issue decided
the tribunal
might
as one of fact
tend
diminish
appeal,
standard of review on
our
usually
because
deferentially
review determinations of fact much more
than conclusions of law.
nals confirms
view
my
that the law-fact distinction is not rel
evant to the art. 30 inquiry. Only one State has invalidated
on
procedure
grounds, and the
separation-of-powers
per
*12
ceived constitutional
flaw was not that
the panel determined
Wright
Central Du Page Hosp.
of law. See
v.
questions
Ass’n, 63 Ill. 2d
(1976).3
313
The overwhelming
courts that have considered the
have held
procedure is not an unconstitutional
interference with judi
cial
Their
power.
are not based on
holdings
role
panels’
Rather,
in finding facts as
opposed
determining law.
these
courts
on the fact that
usually rely
determination is
panel
not a final adjudication of the
Keyes
rights. See
v.
parties’
Alaska, Inc.,
Humana Hosp.
343,
750 P.2d
(Alaska
355-357
Eastin v. Broomfield, 116 Ariz.
1988);
576,
582 (1977);
Green,
Lacy
1171,
v.
428 A.2d
1178 (Del.
1981);
Ct.
Super.
Kranda v.
Medical
Houser-Norborg
Corp.,
419
N.E.2d
1024, 1036 (Ind. Ct.
Johnson,
Attorney Gen. v.
1981);
App.
274,
282 Md.
Nelson,
(1978);
283-290
Prendergast v.
199
97,
Baxt,
Neb.
Suchit v.
(1977);
110
407,
176 N.J. Super.
Arlen,
423-426 (1980);
Comiskey v.
case in
reviewing
the same
legislative
court
revision
the law in re
sponse Wright
makes clear
merely
nonjudicial
that it was not
mem
bers’
making legal
role in
opposed
to factual determinations that was
offensive.
clearly assigned
The revised law
judge
responsibil
the sole
ity
determining
questions
all
again
of law. Yet the court
down
struck
—
procedure merely
because the
had to
authority
share some
(cid:127)—
only fact-finding
even if
authority
nonjudicial
personnel.
Ber
See
Burris,
nier
(1986).
Because I believe that the unworkable, the court is and unconstruc- unnecessary, on tive, in the court’s conclusion that the I concur only I agree and constitutionally permissible. decision is collective determined that the judge correctly with the court that the law to permit was sufficient as a matter of to trial without a bond. go posting