Austin v. Boston University Hospital

• Decision Date: 02 June 1977
• Citation: 363 N.E.2d 515,372 Mass. 654
• Parties: Scott B. AUSTIN et al. 1 v. BOSTON UNIVERSITY HOSPITAL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 515

363 N.E.2d 515

372 Mass. 654

Scott B. AUSTIN et al. ¹ v. BOSTON UNIVERSITY HOSPITAL et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1977.

Decided June 2, 1977.

Wade M. Welch, Boston, for the plaintiffs.

Steven J. Cohen, Boston (Peter L. Puciloski, Boston, with him), for the defendant.

Before HENNESSEY, C.J., and KAPLAN, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

A judge of the United States District Court, District of Massachusetts, has certified four questions to us concerning the application and interpretation of G.L. c. 231, § 60B, inserted by St.1975, c. 362, § 5, which provides for a preliminary hearing by a tribunal in every action for malpractice, error, or mistake against a provider of health care. See S.J.C. Rule 3:21, as amended, 366 Mass. 871(1974). These questions, which are set forth in the margin, ³ arise from the filing of a complaint on December 31, 1975, in which the plaintiffs allege that the defendant hospital and the defendant physicians violated their contractual obligations, committed a breach of warranty, were negligent, and committed a battery on the plaintiff, Scott B. Austin. The plaintiffs also allege that the defendant nurses were negligent in their treatment of Scott B. Austin. ⁴

Section 60B provides that each medical malpractice action 'shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth . . . and an attorney authorized to practice law in the commonwealth. . . .' ⁵ The tribunal 'shall determine if the evidence presented 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 tribunal must hear the medical malpractice action 'within fifteen days after the defendant's answer has been filed.' 'If a finding is made for the defendant the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of (2,000) . . . payable to the defendant for costs assessed, including witness and experts (sic) fees and attorneys (sic) fees if the plaintiff does not prevail in the final judgment.' The Superior Court judge in his discretion may increase the amount of the bond, and, if the plaintiff is indigent, the judge may reduce the amount of the bond but may not eliminate the requirement of a bond. 'If said bond is not posted within thirty days of the tribunal's finding the action shall be dismissed.'

Statute 1975, c. 362, § 13, provides that § 5, by which G.L. c. 231, §§ 60B--60E, were inserted in the General Laws, 'shall take effect on . . . (January 1, 1976).' This provision has prompted the first question certified to us because, as already noted, the complaint in this case was filed on December 31, 1975.

1. The first question inquires whether § 60B applies to a medical malpractice action in which the complaint was filed before January 1, 1976, but no answer was filed until after that date. The basic question is what the Legislature intended by providing that § 60B 'shall take effect on . . . (January 1, 1976).' St.1975, c. 362, § 13. The plaintiffs argue that § 60B applies only to actions entered on and after January 1, 1976. The defendants contend that § 60B applies to all medical malpractice actions pending on January 1, 1976, or at least to those actions which had not passed beyond the procedural stage at which a tribunal would be convened. In this case, of course, as a practical matter, no answer could have been filed prior to January 1, 1976, and it is the filing of a defendant's answer which occasions the appointment of a tribunal. ⁶

The question is one of legislative intent, and, in this instance, the Legislature has given no explicit guidance on the point. Section 60B is largely procedural and, if applied to existing medical malpractice claims, would not interfere with the reasonable expectations of the parties at the time of the transactions giving rise to those claims. Cf. Yates v. General Motors Acceptance Corp., 356 Mass. 529, 531, 254 N.E.2d 785 (1969). On the other hand, a plaintiff who fails to persuade the tribunal that he has a meritorious claim may proceed only by assuming the risk of liability (to the amount of the bond) for the costs of the defense of each defendant who thereafter prevails in the action. By imposing liability for legal costs and expenses on an unsuccessful litigant, § 60B contains an element of substance, and not merely procedure. Our general rule, easily stated out not always easily applied, is to construe statutes which deal with substantive rights, rather than remedies or procedure, as operating prospectively only, unless the Legislature has stated the contrary explicity. See City Council of Waltham v. Vinciullo, 364 Mass. 624, 626--628, 307 N.E.2d 316 (1974); Hein-Werner Corp. v. Jackson Indus. Inc., 364 Mass. 523, 525, 306 N.E.2d 440 (1974); Lindberg v. State Tax Comm'n, 335 Mass. 141, 143, 138 N.E.2d 753 (1956). We think it clear that the Legislature intended that § 60B apply to at least certain existing causes of action. No party claims otherwise. However, because § 60B has a substantive aspect, we shall construe § 60B as applicable only to those medical malpractice actions to which it clearly appears the Legislature intended that it apply. Any uncertainty must be resolved against retroactive application of the statute.

We reject the defendants' argument that § 60B applies to all medical malpractice actions pending on January 1, 1976. We doubt that the Legislature intended that our overburdened Superior Court should undertake the appointment of tribunals in all such pending actions. The pattern of § 60B does not invite such a broad construction. Section 60B requires the appointment of a tribunal and a hearing before it within fifteen days after the defendant's answer has been filed. It makes no reference to cases in which answers have already been filed. We think it clear that the Legislature did not intend § 60B to apply to all pending, untried medical malpractice actions.

Although the issue is a closer one, we also conclude that the Legislature did not intend § 60B to apply to a medical malpractice action pending on January 1, 1976, in which a defendant had not filed an answer. Such an interpretation would create a problem in every case involving codefendants where one defendant had filed an answer before January 1, 1976, and another defendant had not. Statute 1975, c. 362, generally, and G.L. c. 231, § 60B, in particular, give no guidance as to what should be done about a tribunal in such a case. We think that the only reasonable construction of the provision that § 60B 'shall take effect on . . . (January 1, 1976)' is that § 60B shall apply to medical malpractice actions filed on and after January 1, 1976. Such a clear and easily implemented commencement date for § 60B procedures appears to us to be the result most likely intended by the Legislature's direction that § 60B 'shall take effect on . . . (January 1, 1976).'

It is true that this case presents the strongest circumstances in support of a rule which makes § 60B applicable to medical malpractice actions in which answers are filed after January 1, 1976, because here no answer could have been filed before that date, as a practical matter. However, we find no indication of any legislative intent that an exception should be made to the general rule which we think is applicable. In that circumstance, the bias against retroactivity, in the absence of a clear direction from the Legislature, operates to produce the result we have stated.

The answer to the first question is 'No.' Section 60B does not apply to this case. In view of this conclusion, it is not necessary for us to answer the remaining questions, each of which is of significance in the context of this case only if § 60B applies. However, we suspect that there are already and, in any event, will be other medical malpractice actions which will present the same issues in the Federal courts. Therefore, we shall discuss the remaining questions.

2. The second question asks what, if anything, should be done if a medical malpractice action is brought in a court other than the Superior Court. We will answer this question as it applies to the courts of the Commonwealth. The answer may be of some assistance to Federal District Court judges in determining what course to follow. We shall not presume, however, to advise Federal judges concerning the extent to which the provisions of G.L. c. 231, §§ 60B--60E, should be applied in medical malpractice actions pending before them. That is a question of Federal law.

We suspect that the vast majority of medical malpractice actions commenced in this Commonwealth are commenced in the Superior Court or, if not entered there, promptly removed to that court before trial by action of the defendant. See G.L. c. 231, § 104, permitting the immediate removal to the Superior Court of actions involving a claim of more than $4,000. In theory, and perhaps in practice, some medical malpractice cases could be entered and remain in the District and Municipal Courts. There are no other courts in the Commonwealth where such an action logically could be brought.

Section 60B states that every medical malpractice action 'shall be heard by a tribunal.' The Legislature appears to have directed that every such case must be appraised by a tribunal as defined in § 60B. There is no apparent exception. Thus, if a medical malpractice action is entered in a District or Municipal Court of this Commonwealth and not removed to the Superior...