Paro v. Longwood Hospital

Decision Date16 November 1977
Citation373 Mass. 645,369 N.E.2d 985
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Andrew C. Meyer, Jr., Boston, for plaintiffs.

John J. O'Brien, Boston, for defendant.

Acheson H. Callaghan, Jr., and Jeffrey F. Jones, Boston, for Medical Malpractice Joint Underwriting Ass'n of Massachusetts, amicus curiae, submitted a brief.

Arnold Manthorne, John F. Sherman, III, Dennis J. White and William J. Speers, Jr., Boston, for The Massachusetts Medical Society, amicus curiae, submitted a brief.


QUIRICO, Justice.

This case presents, as a matter of first impression, 1 constitutional challenges to G.L. c. 231, § 60B, which establishes a procedure for the screening, by a tribunal, of all actions for "malpractice, error or mistake against a provider of health care." See St.1975, c. 362, § 5. The plaintiffs' medical malpractice action was dismissed when they failed to satisfy a $2,000 bond requirement imposed on them, after a tribunal hearing, as a condition for the continuance of their action. They have appealed the dismissal, contending that the tribunal procedure violates equal protection, due process, and separation of powers provisions of the Massachusetts and United States Constitutions. We granted an application for direct appellate review. G.L. c. 211A, § 10(A).

Robert Paro brought this action in his own right and as next friend for his daughter Lynn Marie. Lynn Marie was born on the premises of the defendant Longwood Hospital (hospital), and employees of the hospital aided in her delivery. The plaintiffs assert that, following the birth, these employees negligently applied silver nitrate to Lynn Marie's eyes, 2 and negligently failed to administer proper care to correct their mistake after the improper application. They contend that this negligence resulted in a scar on Lynn Marie's left cheek which remains visible to this day. 3

Following the filing of the complaint and answer, both parties appeared before a malpractice tribunal constituted pursuant to G.L. c. 231, § 60B, the recently enacted medical malpractice tribunal procedure. The plaintiffs made an offer of proof and the hospital report and some photographs of Lynn Marie were entered in evidence. The panel decided for the defendant, holding "that the evidence submitted by the plaintiff, even if properly substantiated, (was) not sufficient to raise a legitimate question of liability appropriate for judicial inquiry." A bond of $2,000 was imposed on the plaintiffs as a condition for continuance of the action. A motion for reduction of the bond amount, on grounds of financial hardship, was denied. When the plaintiffs did not file the bond within the allotted period, the action was dismissed.

General Laws c. 231, § 60B, was enacted in 1975 as part of a comprehensive package designed to ensure the continued availability of medical malpractice insurance at a reasonable cost. St.1975, c. 362. Section 60B requires that all actions alleging medial malpractice be presented, within fifteen days of the filing of the defendant's answer, to a tribunal consisting of a Superior Court judge, an attorney, and a representative of the health care industry, 4 the latter two appointed by the judge. The tribunal is charged with determining, on the basis of an offer of proof made by the plaintiff, whether "a legitimate question of liability appropriate for judicial inquiry" is presented. If the panel decides that such a question does not exist in a plaintiff's case, and thus finds for the defendant, the judge-member is required to impose a bond on the plaintiff as a condition for further prosecution. The bond is payable to the defendant for his costs if he ultimately prevails. The statute specifies that the bond amount be set at $2,000, but provides discretion to the judge to increase the amount or, if he finds that the plaintiff is indigent, to decrease it. If the plaintiff does not file the required bond within thirty days, the action must be dismissed. Austin v. Boston Univ. Hosp., --- Mass. ---, ---, a 363 N.E.2d 515 (1977).

The Paros attack the statutory procedure by alleging that it is in violation of the Constitutions of both Massachusetts and the United States on equal protection, due process, and separation of powers grounds. We deal with each claim to the extent that it is properly raised in this case, and find no constitutional impediment.

1. Equal Protection of the Laws. The plaintiffs contend that two classifications made by the tribunal statute medical malpractice victims versus victims of other torts, and plaintiffs versus defendants 5 violate their rights to equal protection of the law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and comparable provisions of the Massachusetts Constitution. We disagree.

Classification is an integral part of the legislative task and will not be interfered with by a judicial body unless the distinctions drawn by the enactment are "arbitrary or irrational," or result in "invidious" discrimination. Pinnick v. Cleary, 360 Mass. 1, 28, 271 N.E.2d 592 (1971). Two standards of review have been developed to judge the arbitrariness and invidiousness of legislative acts. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The first test, applied whenever a legislative discrimination "trammels fundamental personal rights or is drawn upon inherently suspect distinctions," Zayre Corp. v. Attorney Gen., --- Mass. ---, ---, b 362 N.E.2d 878 (1977), quoting from New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), requires, for the sustenance of the statute, a showing that the difference in treatment is necessary to the promotion of a compelling State interest. Commonwealth v. Henry's Drywall Co., 366 Mass. 539, 542, 320 N.E.2d 911 (1974). Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Where there is no infringement of fundamental rights or any suspect class, a statutory discrimination will be upheld if it is "rationally related to a legitimate State interest." 6 Zayre Corp., supra at ---, c 362 N.E.2d at 884.

A party challenging the constitutionality of a legislative enactment bears the burden of proving that the proper standard of review is not satisfied. ZAYRE CORP., SUPRA AT --- - ---, 362 N.E.2D 878.D Consolidated Cigar Corp. v. Department of Pub. Health, --- Mass. ---, ---, e 364 N.E.2d 1202. The burden is an onerous one; a reviewing court will presume a statute's validity, and make all rational inferences in favor of it. Commonwealth v. Henry's Drywall Co., supra, 366 Mass. at 541, 320 N.E.2d 911. The Legislature is not required to justify its classifications, nor to provide a record or finding in support of them. Pinnick, supra, 360 Mass. at 28, 271 N.E.2d 592. In order to prevail, therefore, a challenger must affirmatively show that no factual situation can be conceived that will support the reasonableness of the enactment. "The Legislature, when it acts, 'is presumed to be supported by facts known to the Legislature unless facts judicially known or proved preclude that possibility.' South Carolina State Hy. Dept. v. Barnwell Bros. Inc., 303 U.S. 177, 191, 58 S.Ct. 510, 82 L.Ed. 734 (1938)." Pinnick, supra at 32, 271 N.E.2d at 611 (concurring opinion of Tauro, C. J.). "In the absence of some factual foundation of record establishing the lack of any conceivable basis for the legislation we, unless the statute is patently offensive, will defer to the legislative finding of facts." Commonwealth v. Henry's Drywall Co., supra, 366 Mass. at 543 n. 5, 320 N.E.2d at 914.

No claim is made in this case that a fundamental interest or suspect class is involved and it is therefore conceded that the applicable test is the rational basis standard. 7 Additionally, the plaintiffs admit that the purpose that the statute is intended to serve, assuring the continued availability of medical malpractice insurance, see St.1975, c. 362, is a proper object of legislation. The plaintiffs argue, however, that the two classifications that they challenge do not actually promote this goal.

The record of the proceedings below does not indicate that any findings of fact were made or requested on the question of whether the tribunal procedure was rationally related to its stated purpose. An evidentiary hearing and findings of fact may be appropriate in a constitutional challenge to a statute, Henry's Drywall Co., supra at 541 n. 4, 320 N.E.2d 911; factual assertions in an appellate brief are not a substitute. See Bannish v. Bannish, 357 Mass. 279, 281, 258 N.E.2d 10 (1970); Poll-Parrot Beauty Salons, Inc. v. Gilchrist Co., 296 Mass. 451, 452, 6 N.E.2d 612 (1937). Therefore, unless the legislation here is patently offensive, we must defer to the findings implicit in the enactment. Henry's Drywall Co., supra 366 Mass. at 543 n. 5, 320 N.E.2d 911. We find no patent offense. It is not open to us to say that the Legislature could not reasonably have concluded that the imposition of a screening procedure and a bond requirement would discourage frivolous medical malpractice claims, thus reducing the losses to the insurance companies and enhancing the likelihood of the future availability of coverage. 8 Neither can we say that the imposition of the bond requirement on plaintiffs but not on defendants is unreasonable. Discrimination between plaintiffs and defendants is not per se unconstitutional; such classifications must merely satisfy the general rationality standard to survive. Manganaro Drywall, Inc. v. White Constr. Co., --- Mass. ---, --- - ---, f 363 N.E.2d 669 (1977). The Legislature could reasonably have determined that the bulk of frivolous malpractice litigation resulted from plaintiffs who filed and prosecuted suits...

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