In Massachusetts, medical malpractice cases are subject to special court rules and laws. Early in a medical malpractice lawsuit, a patient’s lawyer has to present the case to a three-member “tribunal.” Pursuant to Massachusetts General Laws, Chapter 231:
Every 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…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.
What is an Offer of Proof in a Medical Malpractice Case?
The plaintiff’s Offer of Proof, which a malpractice attorney must provide to the Court, the defendant hospital, doctor or medical provider, and the tribunal members in advance of the hearing, describes the care and treatment the doctors and medical providers gave to the injured patient. The Offer of Proof explains how and why the patient’s care and treatment was substandard or negligent, typically referred to below as the “standard of care” (discussed in a recent blog post). An Offer of Proof also includes a report from a medical expert – a doctor with knowledge about what standard of care applied to the defendant medical provider(s) – that sets forth how the errors the doctors made and how those errors harmed or injured the patient.
What Happens At and After a Medical Malpractice Tribunal in Massachusetts?
Medical malpractice tribunal hearings are generally attended only by the lawyers representing the injured patient and the lawyers for the defendant doctor or medical providers. There is no testimony from the injured patient, the defendant(s) or expert witnesses – rather, the lawyers argue their respective positions. After the case is presented, the tribunal members have the opportunity to ask questions of either side before they convene and make a decision – usually after a conference following the tribunal rather than right after the hearing. The injured patient’s burden of proof at a medical malpractice tribunal is far below what he or she needs to prove at trial.
The medical malpractice tribunal issues a finding, either for the plaintiff or the defendant. When the tribunal finds for the injured patient, the case continues on as if nothing happened. When the tribunal finds for the defendant doctor, the plaintiff and his or her lawyer is required to file a “medical malpractice bond” with Court in order for the lawsuit to continue. The bond is $6,000 as to each defendant medical provider named in the medical malpractice lawsuit. If the injured patient fails to post the bond, the action is dismissed, but if the patient ultimately prevails in the lawsuit, whether by settlement or at trial, the bond is returned to the patient’s lawyers (and then to the patient) at the conclusion of the case.
SUGARMAN lawyers have decades of experience handling the complex nuances of medical malpractice cases.