A Look at the Massachusetts Malpractice Tribunal System

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.