Kopycinski v. Aserkoff

• Decision Date: 18 June 1991
• Citation: 573 N.E.2d 961,410 Mass. 410
• Parties: Catherine P. KOPYCINSKI, administratrix, 1 v. Bernard ASERKOFF, et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 961

573 N.E.2d 961

410 Mass. 410

Catherine P. KOPYCINSKI, administratrix, ¹ v. Bernard ASERKOFF, et al. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 1, 1991.

Decided June 18, 1991.

Raymond J. Kenney, Jr. (Mary T. Gibbons, Boston, with him), for defendants.

Enid M. Starr, Boston, for plaintiff.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

Today we are asked to address the relationship among the three members of a medical malpractice tribunal convened pursuant to G.L. c. 231, § 60B (1988 ed.). Specifically, we are faced with the question whether the decision of a medical malpractice tribunal as to the sufficiency of a plaintiff's offer of proof must conform to the conclusion of the tribunal's judicial member, in spite of the contrary views of the medical and legal members. We rule that the decision of a majority of the panel members shall determine the finding of the tribunal. Therefore, the judge sitting as a member of the tribunal was without power to rule that the plaintiff's offer of proof was sufficient to raise a legitimate question of liability appropriate for judicial inquiry where a majority of the panel found otherwise. However, since the issue is fully briefed and legitimately before us, we take this opportunity to review the offer of proof made by the plaintiff. We determine that the plaintiff's offer of proof was sufficient and that the plaintiff should have been allowed to proceed without posting a bond, consistent with the decision entered. We, therefore, affirm.

The plaintiff's claim arises from the treatment of the plaintiff's husband, the decedent Joseph V. Kopycinski, while he was a patient at Massachusetts General Hospital (MGH). On December 31, 1986, the decedent went to MGH's emergency ward complaining of vomiting, inability to eat, and excessive weight loss. The decedent was examined by defendant Hopkins, who admitted the decedent to the hospital. Thereafter, Dr. Hopkins consulted with Dr. Aserkoff, also a defendant, as to the decedent's treatment. Dr. Aserkoff's notes concerning the decedent appear throughout the medical records. Dr. Aserkoff ordered a number of tests, including an abdominal CT-Scan, to determine the cause of the decedent's condition. Although the CT-Scan showed evidence of an inguinal hernia, the defendant physicians allegedly failed to determine that the hernia was the cause of the decedent's medical problems.

On January 6, 1987, less than twenty-four hours before his death, the defendant doctors obtained a surgical consultation from Dr. Carter. Dr. Carter recommended an exploratory laparotomy after the decedent's condition was stabilized. On January 7, 1987, the decedent died while an inpatient at MGH.

On November 20, 1989, the plaintiff, Catherine Kopycinski, filed a complaint for medical malpractice against the defendants. The complaint alleged that the defendants had failed to properly identify and treat the decedent's medical condition, and that the decedent suffered damages as a result of this failure. On March 26, 1990, a medical malpractice tribunal (tribunal), convened pursuant to G.L. c. 231, § 60B, to review the plaintiff's offer of proof. The tribunal consisted of a physician, an attorney, and a judge of the Superior Court. The attorney and the physician found in favor of each defendant. The judge, however, overruled the majority, stating that, as a matter of law, the plaintiff's offer of proof was sufficient. The judge then ordered that the plaintiff could proceed with her case without posting a bond.

The defendants filed a petition pursuant to G.L. c. 231, § 118 (1988 ed.), for interlocutory review of the tribunal's findings. A single justice of the Appeals Court granted leave to the defendants to file this interlocutory appeal. We transferred the case on our own motion. We determine that the judicial member of the tribunal had no power to overrule the decision of the majority of the panel.

General Laws c. 231, § 60B (1988 ed.), provides for the screening claims of medical malpractice by a tribunal. The statute states, in part, that "[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth under the provisions of section two of chapter one hundred and twelve and an attorney authorized to practice law in the commonwealth, at which hearing the plaintiff shall present an offer of proof and said 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 statute provides that, if the tribunal finds for the defendant, the plaintiff may pursue the claim through the regular judicial process, but only upon filing a bond in the amount of $6,000.

The plaintiff argues that the question which the tribunal is ultimately asked to resolve is a legal one and, thus, solely within the purview of the judicial member of the tribunal. The defendants rely on our decision in Paro v. Longwood Hosp., 373 Mass. 645, 369 N.E.2d 985 (1977), arguing that the question for the tribunal is not a legal question and should be decided by the majority vote of the tribunal. We agree with the defendants. The question to be decided ultimately by the tribunal is a factual one. The plain meaning of the statute, and the legislative guidelines for interpreting statutes which involve tribunals, make it clear that the Legislature intended that a majority vote of the tribunal would determine whether a plaintiff's offer of proof is sufficient.

The words of the statute themselves suggest that the tribunal's decision is a factual and not a legal determination. Words such as "legitimate" and "appropriate," which are used to describe the standard of proof, suggest determinations of fact. Moreover, the statute repeatedly refers to the "finding" of the tribunal, once again suggesting that the task of the tribunal is a fact-finding mission. Perhaps most telling is the "either," "or" language used in the framing of the tribunal's task. The tribunal determines whether the evidence 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" (emphasis supplied). Surely the determination whether a medical result is merely "unfortunate" is not a legal determination. The plain meaning of the words used within the statute suggests that the task of the tribunal is fact-finding, for which the judicial member is no better equipped than the legal or medical member.

Furthermore, the Legislature has issued clear rules as to how a statute such as c. 231, § 60B, is to be interpreted. General Laws c. 4, § 6 (1988 ed.), provides that, unless such a construction would be "inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute.... [w]ords purporting to give a joint authority to, or to direct any act by, three or more public officers or other persons shall be construed as giving such authority to, or directing such act by, a majority of such officers or persons." It is clear from this statute that the Legislature intended that, by setting up a tribunal in G.L. c. 231, § 60B, and stating "said tribunal shall determine if the evidence presented ... is sufficient," that a majority vote of the tribunal members would determine the decision of the tribunal (emphasis added).

The plain meaning of the language "said tribunal shall determine" says that the tribunal as a whole, and not one particular member, shall make the determination. When the Legislature intended for the judicial member to have specific powers with regard to the tribunal, it said so explicitly. For instance, § 60B provides that the judge is to select the health service professional and the attorney who are to serve as co-members on the tribunal; the section also provides that the judicial member may increase or decrease the amount of the bond to be filed.

We note that the judicial member of the tribunal would certainly be solely responsible for deciding purely legal issues. In Paro v. Longwood Hosp., 373 Mass. 645, 656-657, 369 N.E.2d 985 (1977), we rejected the plaintiff's argument that the tribunal statute violated art. 30 of the Massachusetts Declaration of Rights because it allows the two lay panel members to override the judge in the decision of legal issues. The Paro court stated that "[t]he lawyer and the health service representative are placed on the panel because of their expertise in relevant fields. This expertise is useful in deciding the primary question faced by the tribunal--whether the plaintiff has presented a legally sufficient claim. As to the determination of this issue, the tribunal decision is a collective one, with all three panel members participating equally. The responsibility for deciding purely legal questions, however, is left solely with the judge-member of the tribunal, and thus no interference with his function occurs." (Emphasis supplied.) Id. at 657, 369 N.E.2d 985. The proposition set forth in Paro is that the primary question the tribunal must answer is not a legal question and is, therefore, to be decided collectively by the panel members, with all three as equal participants. Decisions such as the admissibility of evidence proffered to the tribunal would fall into the purely legal category to be determined by the judicial member only.

One year later, in Little v. Rosenthal, 376 Mass. 573, 382 N.E.2d 1037 (1978), we clarified the standard by which the tribunal is to judge the plaintiff's offer of proof. We determined that the language set forth in the statute that the tribunal was to "determine if the evidence presented ... is sufficient...