Lambley v. Kameny

• Decision Date: 01 August 1997
• Docket Number: No. 96-P-59,96-P-59
• Court: Appeals Court of Massachusetts
• Parties: Mark T. LAMBLEY v. Stuart M. KAMENY & another. 1

Page 907

682 N.E.2d 907

43 Mass.App.Ct. 277

Mark T. LAMBLEY v. Stuart M. KAMENY & another. ¹

No. 96-P-59.

Appeals Court of Massachusetts Essex.

Argued Jan. 14, 1997.

Decided Aug. 1, 1997.

Michael P. Hickey, Salem, for plaintiff.

Joan Eldridge, Cambridge, for Stuart M. Kameny.

Before BROWN, KASS and LAURENCE, JJ.

LAURENCE, Justice.

This appeal presents the novel question whether the medical malpractice tribunal screening process established by G.L. c. 231, § 60B, ² applies to a tort action against a psychiatrist brought by a job applicant who was required by the prospective employer to undergo psychological testing, was erroneously diagnosed as psychologically unfit by the psychiatrist, and was consequently passed over for the job on the basis of that diagnosis. Over the jurisdictional objection of the job applicant (appellant Mark T. Lambley), a medical malpractice tribunal entertained the complaint and determined that Lambley's offer of proof against the psychiatrist (appellee Stuart M. Kameny) was insufficient. We conclude that, although jurisdiction properly lay with the tribunal, the judgment of dismissal must be vacated because the offer of proof was adequate.

1. Background. The facts underlying the controversy are somewhat more complex than the generality on the jurisdictional issue posed above. In March, 1991, Lambley applied for a position as a reserve police officer with the city of Lynn. Pursuant to rules of the State Department of Personnel Administration (DPA), every applicant for a police position has to undergo psychological fitness screening. In April, 1991, the Lynn personnel director, exercising authority delegated by DPA, informed Lambley that he was to receive his psychological screening from two psychotherapists, Donald Seckler, a psychologist, and a psychiatrist, who turned out to be Dr. Kameny. Seckler and Kameny were aware of the purpose of their evaluation of Lambley and that Lambley would be entitled to an explanation from them of any adverse testing results.

After interviewing and testing Lambley, ³ Seckler and Kameny submitted a joint report to the Lynn personnel director stating that they had diagnosed Lambley as having a "passive aggressive personality disorder" which was incompatible with police work and recommending that he not be hired. ⁴ Based upon their evaluation, the personnel director notified Lambley that he was "potentially psychologically unsuitable" for the police position he sought and was being rejected.

Lambley filed an appeal from his rejection with the State Civil Service Commission, pursuant to G.L. c. 31, § 2(b ). In July, 1992, after a hearing, the commission overturned Seckler's and Kameny's psychological evaluation of Lambley as constituting a "casual" and "cavalier" analysis unsupported by the testing done, inconsistent with DSM-III-R criteria (see note 4, supra ) and in actuality representing a "smokescreen" designed to mask the real reasons for Lambley's rejection, allegedly questionable incidents in his background rather than his psychological fitness. ⁵ Supporting that conclusion, Seckler had testified at the hearing before the commission that Lambley's testing had not in fact supported a diagnosis of passive-aggressive personality disorder. While recognizing that the concerns raised by the background incidents were legitimate and could be overtly considered in subsequent proceedings, the commission ordered Lambley's eligibility for the police position to be revived. ⁶

Lambley subsequently commenced a Superior Court action against Seckler and Kameny, asserting counts for "medical malpractice/negligence," "interference with advantageous business relations" and "defamation," and demanding as relief damages for "loss of wages, employment opportunities and mental anguish." The action was referred over his objection for a hearing before a medical malpractice tribunal. There Lambley continued to argue that his claims were not within the tribunal's jurisdiction, but also presented an offer of proof, which included, in addition to evidence of Seckler's recantation before the Civil Service Commission, a report by Steven N. Shapse, a clinical psychologist. Shapse concluded, from his review and reevaluation of the tests administered by Seckler and Kameny and their report, that the results of those tests "d[id] not warrant ... [the] diagnosis" of passive-aggressive personality disorder, which diagnosis he characterized as "unfounded"; and he opined, based upon those results and the criteria of DSM-III-R, that Lambley did not suffer from any such disorder. The tribunal determined that Lambley's presentation sufficiently raised a legitimate question of liability appropriate for judicial inquiry as to Seckler but not as to Kameny. Lambley did not post the required bond as to his allegations against Dr. Kameny, and a Superior Court judge accordingly allowed Kameny's motion to dismiss. ⁷ G.L. c. 231, § 60B, par. 6.

2. The jurisdiction of the tribunal. Lambley asserts that his claims against Dr. Kameny were not within the tribunal's jurisdiction because his three causes of action are not "treatment related," the damages sought do not flow from "medical results," he was not a patient of Kameny, and his "interference with advantageous business relations" count charges an intentional tort that does not involve a medical decision, medical malpractice, or a physician-patient relationship. We see no merit in his contentions on this record and conclude that the tribunal's exercise of jurisdiction was appropriate.

The first count of Lambley's complaint, which is expressly labeled "medical malpractice," alleges that "Kameny ... and ... Seckler ... were negligent in their evaluation and/or examination of the plaintiff in that they ... failed to exercise the degree of care and skill of the average qualified member of the medical profession practicing a specialty taking into account the advances in the profession ... [and][e]rroneously diagnosed plaintiff's condition." These are the classic allegations of an action for medical malpractice. See Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793 (1968); Nolan & Sartorio, Tort Law § 278 (2d ed.1989); Perlin, Mottla's Proof of Cases in Massachusetts: Civil §§ 24.1-24.3 (3d ed.1992); Prosser and Keeton, The Law of Torts § 32, at 186-189 (5th ed. 1984).

Although the label attached to a pleading or motion is far less important than its substance, see Smith & Zobel, Rules Practice § 7.11 (1974); 5 Wright & Miller, Federal Practice and Procedure § 1196 2d ed.1990), here form followed substance. The central issues raised by Lambley's complaint, which underlie every one of his three counts, are the nature and extent of Kameny's interview, examination and evaluation of Lambley, the soundness of Kameny's methodology, and the accuracy of his conclusions and diagnosis drawn therefrom. These issues are the essence of a medical malpractice case. ⁸ Moreover, the damages Lambley seeks--loss of wages, other economic detriment, and pain, suffering and embarrassment--are precisely the sort contemplated under the malpractice tribunal scheme. G.L. c. 231, §§ 60F(a )(2) & (3).

In short, Lambley's claims realistically constitute a charge that Dr. Kameny was "negligent or mistaken in terms of [his] medical judgment" regarding Lambley's psychological condition; such an impugning of Kameny's psychiatric judgment would appear to be well within the jurisdiction of a medical malpractice tribunal. See Leininger v. Franklin Med. Center, 404 Mass. 245, 248, 534 N.E.2d 1151 (1989) (contrasting an evaluation of a psychiatrist's failure to comply with the civil commitment statute, which did not fall within the competence of a tribunal, with mistakes in "medical decisions," including "medical judgment or treatment," which do); Johnston v. Stein, 29 Mass.App.Ct. 996, 997, 562 N.E.2d 1365 (1990) (the question of tribunal jurisdiction is resolved by analyzing "the core of [the plaintiff's] complaint" and is a matter of its "substance, not the legal theory adopted").

The language and purpose of the statute support tribunal jurisdiction. The first words of G.L. c. 231, § 60B, as inserted by St.1975, c. 362, § 5, proclaim that "[e]very action for malpractice, error or mistake against a provider of health care [ ⁹] shall be heard by a tribunal ..." (emphasis added). The first judicial decision discussing the statute stressed "every" and "shall" as words of universal application when medical malpractice issues are involved in an action: "There is no apparent exception." Austin v. Boston Univ. Hosp., 372 Mass. 654, 660, 363 N.E.2d 515 (1977) (also holding, id. at 655 n. 4, 363 N.E.2d 515, that "[c]learly, a claim of negligence falls into [the] class of action" described by the words "[e]very action for malpractice, error or mistake"). See also Little v. Rosenthal, 376 Mass. 573, 576-577, 382 N.E.2d 1037 (1978) (citing Austin and the sentence just quoted and twice reiterating that the tribunal requirement covers "error and mistake" by a health care provider, as well as "malpractice").

A broad reading of those words that brings Lambley's action within the ambit of § 60B is also in accord with the remedial purpose of the statute. The tribunal screening mechanism was created to discourage frivolous claims against health care providers, the defense of which would tend to increase malpractice insurance premiums to levels that would create undue financial hardship for providers, causing an increase in the cost of medical services, or even discourage provider entry into or continuation in practice, all to the public's ultimate detriment. See Austin, 372 Mass. at 655 n. 4, 363 N.E.2d 515; Paro v. Longwood Hosp., 373 Mass. 645, 647, 369 N.E.2d 985 (1977); Little v. Rosenthal, 376 Mass. at 577, 382 N.E.2d 1037; Brodie v. Gardner Pierce Nursing & Rest Home, Inc., 9 Mass.App.Ct. 639, 641, 403 N.E.2d 1184 (1980).

Consistent with that statutory purpose, even...