Byrnes v. Kirby, Civ. A. No. 76-2555-F.

• Decision Date: 19 May 1978
• Docket Number: Civ. A. No. 76-2555-F.
• Citation: 453 F. Supp. 1014
• Parties: Harold BYRNES v. Francis KIRBY et al.
• Court: U.S. District Court — District of Massachusetts

453 F. Supp. 1014

Harold BYRNES v. Francis KIRBY et al.

Civ. A. No. 76-2555-F.

United States District Court, D. Massachusetts.

May 19, 1978.

Andrew C. Meyer, Jr., Boston, Mass., for plaintiff.

Anthony D. Murphy, Sullivan & Cronin, Boston, Mass., for defendant Kirby.

Clement McCarthy, Lowell, Mass., for defendant Sergi.

John J. C. Herlihy, Herlihy & O'Brien, Boston, Mass., for defendant Borgia.

John J. C. Herlihy, Herlihy & O'Brien, Boston, Mass., for defendant Cardinal Cushing Hospital.

Raymond J. Kenney, Jr., Boston, Mass., for defendant Rodriguez.

MEMORANDUM AND ORDER

FREEDMAN, District Judge.

This action was filed on July 2, 1976 by plaintiff Harold J. Byrnes seeking to recover monetary damages for injuries sustained while under the medical care of the defendants, Francis Kirby, Paul Sergi, Francis Borgia, and Jeronimo Rodriguez, and the agents, servants and employees of the defendant Cardinal Cushing General Hospital, Inc. The plaintiff allegedly submitted himself to the care of the defendants on or about April 3, 1974, and he claims negligence on the part of each of the defendants. The court's jurisdiction in this action is based solely on the diversity of citizenship between the plaintiff and the defendants.

The procedural posture of the case merits some explanation. On March 24, 1977, the defendants Sergi and Rodriguez made a motion for reference of the instant action to a medical malpractice tribunal pursuant to Mass.Gen.Laws, ch. 231, § 60B (Supp. 1977-78) (hereinafter "section 60B"),¹ which motion was allowed by the court on April 5, 1977. Shortly thereafter, on April 15, 1977, the plaintiff made a motion requesting that the court reconsider its decision of April 5, 1977 to allow the motion for reference to a medical malpractice tribunal. The plaintiff's motion for reconsideration was accompanied by a motion requesting a stay of the court's order pending the response of the Supreme Judicial Court of Massachusetts to four questions regarding the application and interpretation of section 60B certified to that court by another Judge of this District Court in the case of Austin v. Boston Univ. Hosp., S.J.C. No. 754. Before this court ruled on the motions, the parties entered into a stipulation filed on May 2, 1977 that provided inter alia that the plaintiff's motion for reconsideration of this court's order of reference to a medical malpractice tribunal and the plaintiff's motion for a stay of that order would be held in abeyance until the Supreme Judicial Court's response was issued in the Austin case.² Following issuance of the Austin opinion by the Supreme Judicial Court on June 2, 1977, Austin v. Boston Univ. Hosp., 1977 Mass. Adv.Sh. 1166, 363 N.E.2d 515, two other defendants, Francis Borgia and Cardinal Cushing Hospital, Inc., made a motion for reference of the case to a medical malpractice tribunal pursuant to section 60B, and the plaintiff renewed his motion for reconsideration. These are the motions before the court at this juncture.³

For the reasons stated below, the court concludes that this case must be referred to a medical malpractice tribunal in accordance with Mass.Gen.Laws, ch. 231, § 60B. The court, therefore, denies the plaintiff's motion for this court to reconsider its decision to allow the motion of the defendants Sergi and Rodriguez for reference of this case to a medical malpractice tribunal. The court also grants the motion of the defendants Borgia and Cardinal Cushing Hospital, Inc. to refer this case to a medical malpractice tribunal.

Section 60B: The Massachusetts tribunal hearing and bonding requirement

The Massachusetts medical malpractice statute was enacted in 1975 to add chapter 231, sections 60B to 60E, to the General Laws. 1975 Mass. Acts, ch. 362, § 5, as amended, 1975 Mass. Acts, ch. 634, §§ 1 & 2. Section 60B requires that every action for malpractice which is brought against a provider of health care be heard by a tribunal, composed of a single justice of the Massachusetts Superior Court, a physician licensed to practice medicine in Massachusetts and an attorney authorized to practice law in Massachusetts, within 15 days after the defendant's answer has been filed. The physician and the attorney are selected by the single justice from lists submitted by the state medical society and bar association. At the hearing, the plaintiff shall present an "offer of proof" and the tribunal shall decide "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." Mass.Gen.Laws, ch. 231, § 60B (Supp.1977-78). If the tribunal finds for the defendant, the plaintiff may press the claim through the usual judicial channels only upon filing bond in the amount of two thousand dollars ($2,000) or higher, if so set by the single justice, with the clerk of the court in which the case is pending. The amount of the bond is payable to the defendant for the costs assessed including witness', expert's and attorney's fees, in the event that the plaintiff does not prevail in the final judgment. Section 60B further provides that the action shall be dismissed if the bond is not posted within thirty (30) days of the unfavorable finding of the tribunal. Although the amount of the bond may be reduced by the justice upon the plaintiff's motion and the court's determination that the plaintiff is indigent, the bonding requirement may not be eliminated. Id.⁴

In Austin v. Boston Univ. Hosp., supra, the Supreme Judicial Court shed some light on the operation of section 60B.⁵ That court observed that the "apparent purpose of the statute was to discourage frivolous claims whose defense would tend to increase premium charges for medical malpractice insurance." 1977 Mass.Adv.Sh. at 1167 n. 4, 363 N.E.2d at 516 n. 4. More importantly, the court also indicated that a "medical malpractice action brought in a court other than the Superior Court must be referred to a tribunal in the Superior Court for action in accordance with § 60B and its associated sections." Id. at 1173-74, 363 N.E.2d at 519. Although reference to a tribunal was regarded as mandatory for medical malpractice actions instituted in any state court in Massachusetts, the Supreme Judicial Court recognized that the application of section 60B to actions for medical malpractice instituted in federal district court is a question of federal law. Id. at 1172, 363 N.E.2d at 518. That court did suggest, however, the procedure to be followed if it is determined by a federal court that a tribunal should hear an action for medical malpractice brought in federal district court, that the federal court should not create its own tribunal and that it is appropriate for a tribunal convened by the Superior Court to hear the case. That procedure is: "on appropriate reference to the Superior Court, a § 60B tribunal will be appointed and act on the matter, after which its findings will be transmitted to the clerk of the Federal Court." Id. at 1173, 363 N.E.2d at 519.⁶

The "Erie" problem

The issue raised by the motions before the court at this time is whether reference to a medical malpractice tribunal pursuant to section 60B is a substantive right of a defendant under Massachusetts law which must be applied by a federal court in a medical malpractice case where the court's jurisdiction is based on the diverse citizenship of the parties.⁷ The familiar starting point for inquiry must be the Rules of Decision Act, 28 U.S.C. § 1652, and the United States Supreme Court decision in Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), interpreting that statute. The Rules of Decision Act provides that "the laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." 28 U.S.C. § 1652. In Erie, supra at 78, 58 S.Ct. 817, the Supreme Court found that "laws of the several states" included judicial decisions as well as statutes. But the Erie decision has been regarded as standing for much more. With regard to the application of state law in actions entertained in federal courts, Erie and its progeny established the principle that, with respect to non-federal matters in cases where jurisdiction is based on diversity of citizenship, substantive state law is to be applied by federal courts. Id.; Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); 1A, Pt. 2 Moore's Federal Practice ¶ 0.304, at 3045 (2d ed. 1977).

The Erie principle has been recast by the Supreme Court upon numerous occasions. In Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the Court decided that a state statute of limitations which might have barred the same suit if brought in a state court had to be applied in a federal diversity action. The Court viewed the test as something more than characterizing a state rule of law as either substantive or procedural:

And so the question is not whether a statute of limitations is deemed a matter of "procedure" in some sense. The question is whether such a statute concerns merely the manner and the means by which a right to recover, as recognized by the State, is enforced, or whether such statutory limitation is a matter of substance in the aspect that alone is relevant to our problem, namely, does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State Court.

. . . . .

. . . In essence, the intent of Erie was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court

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