AAOS Now

Published 5/1/2010
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Marylou Foley, RN, MS

Tribunal system works in Massachusetts

An effective approach to decreasing frivolous lawsuits

The Massachusetts Medical Malpractice Tribunal (MMT) system attempts to screen out nonmeritorious lawsuits and reduce the number of frivolous medical malpractice cases. Instituted in the mid-1970s when medical professional liability (MPL) insurance premiums rose dramatically and MPL carriers began leaving the state, the MMT’s goal is to decrease the number of frivolous claims being brought against physicians and other healthcare providers.

How it works
Under the tribunal system, a plaintiff wishing to pursue a lawsuit alleging professional negligence against any healthcare provider must demonstrate the merits of his or her case at an early stage—before substantial defense costs have been incurred and, consequently, with less emotional cost to the healthcare providers. Any action alleging medical malpractice, error, or mistake by a healthcare provider must be presented to the tribunal. This law, however, only applies to those lawsuits filed in court; plaintiffs presenting their claims in a letter addressed to the healthcare provider are not subject to this requirement.

The tribunal panel consists of a superior court judge, an attorney, and a Massachusetts-licensed healthcare provider who practices in the same field of medicine in which the alleged injury occurred and who lives and works in a different county than the defendant. The healthcare provider is usually a physician, although defendants such as nurses, pharmacists, or physical therapists, can request a panel member from that profession. The judge, however, determines whether a panel member’s specialty is appropriate; sometimes physicians are deemed suitable to decide the merits of the case for all defendants, including nonphysicians. The panel attorney and healthcare provider receive a small compensation (currently $50 per case) for their service.

Although timing of the tribunal is mandated by law, it can be years, however, before a tribunal is held, even to the point that a trial date may have already been set. Tribunals may be delayed or rescheduled due to the difficulty in finding a panel physician of a desired specialty, the identification of potential conflicts, and scheduling problems with the court.

The task of the tribunal
The tribunal is tasked with answering one question: Can the plaintiff present evidence that, if properly substantiated, is enough to bring the case before a jury? Panel members can, and do, ask questions; however, their decision is primarily based on reading the Offer of Proof submitted by the plaintiff.

The Offer of Proof outlines the plaintiff’s allegations and usually contains some medical records and other documents (death certificates, plaintiff affidavits, and hospital and office records). It should also include a statement from an expert stating that the standard of care was breached and that the breach caused injury to the plaintiff.

The criteria for the finding is that of a directed verdict—that is, assuming the credibility of the evidence presented by the plaintiff, only one conclusion is reasonable. If a plaintiff prevails by at least a majority vote of the three panelists, discovery can progress in the usual manner. If the defendant prevails, the plaintiff must file a bond to proceed. If the bond is not posted within 30 days, the action is dismissed. If a bond is posted and there is a defense verdict at a subsequent trial, the bond is released to the defendant’s MPL carrier to cover the legal costs incurred in defending the healthcare provider.

Initially, this bond was required to be $2,000 but was raised to $6,000 in 1986 at the request of the Massachusetts Medical Society, which thought $2,000 was too low an amount to discourage frivolous lawsuits. The amount of the bond can be increased or decreased at the judge’s discretion.

The panel is required to find for the plaintiff if there is anything in the evidence presented that can lead to a reasonable inference of liability. Although the tribunal does not screen out many cases or eliminate all frivolous claims, it is not without advantages to the defense. Complaints are often vague and do not shed any light on the theories of liability; the Offer of Proof, however, does provide this information. Thus, it does help in determining what the major issues in the case are likely to be, which helps the defense team focus their efforts.

At the time of the tribunal’s inception, the plaintiff bar questioned the constitutionality of the MMT screening process, but was unsuccessful in eliminating it. Recently, some plaintiffs have raised the issue of whether third-party litigant claims arising from the alleged negligence of healthcare professionals are entitled to a tribunal. In these cases, the plaintiffs allege they were harmed by a patient who was negligently treated by his or her healthcare provider. Plaintiffs often claim motor vehicle accident injuries caused by drivers who should have been advised by their physicians not to drive because of their medical conditions or their prescription drugs.

Not a panacea
Although the MMT screening process is not a panacea, it has had some effect in weeding out the most frivolous of claims. Massachusetts-based Medical Professional Mutual Insurance Company and its subsidiaries (“ProMutual Group”), a leading provider of medical liability insurance, informally tracked the tribunal’s results from Jan. 1, 2003, until Nov. 30, 2008. Following are some of their findings:

  • During the time tracked, more than 3,000 tribunal findings were reported.
  • The tribunal found for the plaintiff approximately 80 percent of the time.
  • Indemnity payments (resulting from settlements or jury awards) were made in only about one third of the cases.
  • Payment was made in only 8 percent of the cases in which the tribunal found for the defense.
  • Approximately 70 percent of the suits with a defense finding at tribunal are dismissed before they even get to trial.

Although many defendant physicians are often frustrated that cases against them, which may appear quite meritless, do not get screened out at tribunal, plaintiffs are often equally frustrated when they prevail at tribunal and either do not get an offer of settlement or go on to lose at trial. It may be far from a perfect system, but the MMT screening process has had a positive effect on the medical liability environment in Massachusetts.

Marylou Foley, RN, MS, is a claims manager for the ProMutual Group. She prepared this article at the request of the AAOS Medical Liability Committee.

The orthopaedic risk
Orthopaedics is often considered at high risk for medical liability allegations. In a review of payments made under either a settlement or a jury verdict in Massachusetts during a 10-year period (1994–2003), orthopaedic surgeons ranked fifth in terms of highest payments, (following obstetrician/gynecologists, gynecologists, neurosurgeons, and general surgeons).

From 1994 to 2003, total payments of $74,447,441 were made on behalf of 13.5 percent of the 1,208 orthopedic surgeons in the state.

The average payment was approximately $289,000, but individual payments ranged from $3,000 to $3,750,000.

Of the 66 orthopaedists who did not perform surgery, only two had paid claims.

References:

  1. Medical Malpractice Analysis. Commonwealth of Massachusetts Board of Registration in Medicine. November 2004.
  2. Massachusetts General Laws Ch. 231 §60B (2007).