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The Massachusetts Malpractice Plaintiff's New Hurdles: The Expanding Role of the Medical Malpractice Screening Tribunal

Published online by Cambridge University Press:  29 April 2021

James D. Ossyra
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Abstract

The medical malpractice crisis of the early and mid-1970s prompted many states to enact legislation creating medical malpractice screening tribunals. This legislation often failed to define clearly the role and jurisdiction of the tribunals. The lack of statutory definition is particularly apparent where a claim before a tribunal raises primarily nonmedical issues. The changing doctrines of hospital liability, involving both medical and nonmedical determinations, illuminate this jurisdictional difficulty.

This Note examines the Massachusetts courts' attempts to define the tribunal's role when the tribunal is confronted with issues of hospital liability and other unsettled areas of the substantive law of medical malpractice. The Note suggests that tribunals should be limited to deciding issues concerning medical treatment and the professional conduct of physicians and hospitals.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 8 , Issue 4 , Winter 1983 , pp. 481 - 508
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1983

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References

1 See infra note 18.

2 See infra note 19 and accompanying text.

3 See infra notes 18-25 and accompanying text.

4 See, e.g., MASS. Gen. LAWS Ann. ch. 231, § 60B (West Supp. 1979).

5 Id.

6 See Roth, , The Medical Malpractice Insurance Crisis: Its Causes, The Effects, and Proposed Solutions, 44 Ins. Couns. J. 469, 495-97 (1977)Google Scholar.

7 See infra notes 73-74 and accompanying text.

8 See infra notes 29-51 and accompanying text.

9 1980 Mass. Adv. Sh. 755, 402 N.E.2d 463 (1980).

10 1980 Mass. Adv. Sh. 1037, 403 N.E.2d 1166 (1980).

11 The tribunal's role in determining hospital liability may differ depending on the theory advanced by the plaintiff in his or her complaint. See infra notes 144-48 and accompanying text. There are at least two distinct approaches to hospital liability—vicarious liability and corporate liability. See infra notes 31-52 and accompanying text.

12 See, e.g., American Surgical Association Statement on Professional Liability, 295 New Eng. J. Med. 1292 (1976)Google Scholar. In 1973 the Department of Health, Education, and Welfare prepared a broad statistical analysis of medical malpractice. The study concluded that a crisis did in fact exist. See Secretary's Commission on Medical Malpractice, Hew, Report on Medical Malpractice (1973). See generally Note, Medical Malpractice Screening Panels: A Judicial Evaluation of Their Practical Effect, 42 U. Pitt. L. Rev. 939, 941 (1981)Google Scholar.

13 The possibility of a recovery in a tort suit is alone sufficient risk to render it nearly impossible to conduct a reasonable business without some sort of insurance coverage.

14 In fact, some insurers did withdraw from the market. See Sheehan, , The Medical Malpractice Insurance Crisis in Insurance: How It Happened and Some Proposed Solutions, 11 Forum 80 (1975)Google Scholar.

15 Id.

16 See Roth, , The Medical Malpractice Insurance Crisis: Its Causes, The Effects, and Proposed Solutions, 44 Ins. Couns. J. 469, 473-74 (1977)Google Scholar. The health care cost spiral, fueled by expensive technology and education, had already become a matter of concern. See generally Note, Hospital Cost Control: Single-Edged Initiatives for a Two-Sided Problem, 15 Harv. J. Legis. 603 (1978)Google Scholar. Several factors contributed to the unavailability and increased costs of malpractice insurance. First, the number of malpractice actions increased at a rapid rate during the early 1970s. See Sheehan, supra note 14, at 115-16. Second, many courts revised the substantive law of medical malpractice. The courts modified the restrictions of the locality rule and recognized new causes of action. See, e.g., Brune v. Belinkoff, 354 Mass. 102, 108, 235 N.E.2d 793, 798 (1968). See also Note, Willingness to Abrogate the Locality Rule in Medical Malpractice Suits Indicated, 43 Miss. L.J. 587, 589 (1972). Most importantly, lack of informed consent became the basis for suit. See Meisel, , The Expansion of Liability for Medical Accidents: From Negligence to Strict Liability By Way of Informed Consent, 56 Neb. L. Rev. 51 (1977)Google Scholar. See also Reddington v. Clayman, 334 Mass. 244, 245-47, 134 N.E.2d 920, 922 (1956). Third, the courts reduced or removed the traditional barriers to recovery as to a hospital. The defenses of charitable and governmental immunity were undermined substantially by 1970, and hospitals were more often named as defendants. See 2 D. Louisell & H. Williams, Medical Malpractice ¶¶ 17.01-.57 (1981). Finally, damage awards were often well above the amount contemplated when premiums had been set. Cf. Sheehan, supra note 14, at 89. (noting the unwillingness of an insurance company to accept the risks involved in long term rate setting, presumably because the company's then current claims were not being covered by the premiums charged previously).

17 Most other states studied the malpractice problem as well, and many of them took affirmative action. See generally Note, Medical Malpractice Screening Panels, supra note 12, at 941.

18 An Act Relative to Medical Malpractice, 1975 Mass. Acts 362. The relevant section is now codified at Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979). In addition to Massachusetts, approximately one half of the states have set up screening or arbitration tribunals. See Note, Medical Malpractice Screening Panels, supra note 12, at 941. These tribunals vary in composition as well as procedure, and also may differ as to such matters as admissibility of findings. Id. Some helpful tables summarizing this information as of 1977 can be found at Note, Medical Malpractice Mediation Panels: A Constitutional Analysis, 46 Fordham L. Rev. 322, 350-53 (1977).

Judicial response to the creation of these screening or arbitration panels has varied. Some state courts declared the statutes constitutionally invalid as promulgated. See Wright v. Central DuPage Hosp. Ass'n. 63 Ill. 2d 313, 347 N.E.2d 736 (1976) (construing Ill. Ann. Stat. ch. 110, §§ 58.2, .3-.10 (Smith-Hurd Supp. 1978)); Simon v. St. Elizabeth Medical Center, 3 Ohio App. 3d 164, 355 N.E.2d 903 (1976) (construing Ohio Rev. Code Ann. § 2711.21 (Page Supp. 1980)). Other courts have struck down the statutes as constitutionally invalid as applied. See Aldana v. Holub, 381 So. 2d 231 (Fla. 1980) (construing Fla. Stat. Ann. §768.44(3) (West Supp. 1981)); Mattos v. Thompson, 491 Pa. 385, 421 A.2d 190 (Pa. 1980) (construing 40 Pa. Con. Stat. Ann. §§ 301.301-.606 (Purdon Supp. 1980)). The majority of states have found no constitutional difficulty with the screening tribunal. See, e.g., Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); Paro v. Longwood Hospital, 373 Mass. 645,369 N.E.2d 985 (1977).

19 See Lubanes v. George, 386 Mass. 320 (1982). Cf. Paro v. Longwood Hosp., 373 Mass. 645, 647, 369 N.E.2d 985, 987 (1977). In Paro the court stated that the enabling statute “was enacted in 1975 as part of a comprehensive package designed to ensure the continued availability, of medical malpractice insurance at a reasonable cost.” Further, the court noted that the Massachusetts legislature probably envisioned “a screening procedure and a bond requirement (that) would discourage frivolous medical malpractice claims, thus reducing the losses to the insurance companies. … ” Paro, 373 Mass, at 651, 369 N.E.2d at 989.

20 See supra note 19.

21 The structure and procedure of the various types of screening tribunals have been set out in detail in numerous articles and comments. See, e.g., Ehrardt, , One Thousand Seven Hundred Days: A History of Medical Malpractice Mediation Panels in Florida, 8 Fla. St. U.L. Rev. 165 (1980)Google Scholar; Note, Medical Malpractice Mediation Panels: A Constitutional Analysis, 46 Fordham L. Rev. 322 (1977); Note, The Massachusetts Medical Malpractice Statute: A Constitutional Perspective, 11 Suffolk U.L. Rev. 1289 (1977). When a malpractice suit is instituted in states which have enacted a screening mechanism, the statutes require that the claim be presented to a panel prior to going to trial. The panel may be made up of judges, lawyers, and/or doctors, or some combination thereof. The panel reviews the claim, and based on the claim's merit, either allows the plaintiff to proceed to trial or places some sort of restriction on the proceedings. A bond may be required where the plaintiffs claim is found to be “frivolous” or non-meritorious. The malpractice screening tribunal does not bar the plaintiff from the courthouse, but does make entry more difficult for the plaintiff with less than a clear cut case. See Note, Medical Malpractice Screening Panels: A Judicial Evaluation of Their Practical Effect, 42 U. Pitt. L. Rev. 939, 947-49 (1981).

22 Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979).

23 Id.

24 At first glance, it appears that the statute allows the tribunal finding itself to be admitted at trial. See Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979). However, the SJC has limited later admissible evidence to relevant expert testimony in order to avoid an unconstitutional result. Beeler v. Downey, 387 Mass. 609, — N.E.2d — (1982).

25 Section 60B reads in relevant part as follows:

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 plaintiffs case is merely an unfortunate medical result.

…

Where the action of malpractice is brought against a provider of health care not a physician, the physician's position on the tribunal shall be replaced by a representative of that field of medicine in which the alleged tort or breach of contract occurred. … Where there are codefendants representing more than one field of health care the superior court justice shall determine in his discretion who shall represent the health care field on the tribunal.

Each such action for malpractice shall be heard by said tribunal within fifteen days after the defendant's answer has been filed. Substantial evidence shall mean such evidence as a reasonable person might accept as adequate to support a conclusion. Admissible evidence shall include, but not be limited to, hospital and medical records, nurses’ notes, x-rays and other records kept in the usual course of the practice of the health care provider … statements of fact or opinion on a subject contained in a published treatise, periodical, book or pamphlet or statement by experts without the necessity of such experts appearing at said hearing. The tribunal may upon the application of either party or upon its own decision summon or subpoena any such records or individuals to substantiate or clarify any evidence which has been presented before it and may appoint an impartial and qualified physician or surgeon or other related professional person or expert to conduct any necessary professional or expert examination of the claimant or relevant evidentiary matter and to report or to testify as a witness thereto… . The testimony of said witness and the decision of the tribunal shall be admissible as evidence at a trial.

If a finding is made for the defendant the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of two thousand dollars …, payable to the defendant for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment. Said single justice may within his discretion, increase the amount of the bond required to be filed. If said bond is not posted within thirty days of the tribunal's finding the action shall be dismissed. Upon motion filed by the plaintiff, and a determination by the court that the plaintiff is indigent said justice may reduce the amount of the bond but may not eliminate the requirement thereof.

26 This lack of clarity may stem from the fact that section 60B was hastily promulgated and enacted. Massachusetts classified the statute as “emergency” legislation. The preamble to the Act states:

Whereas, the deferred operation of this act would tend to defeat its purpose, which is, in part, to guarantee the continued availability of medical malpractice insurance, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

An Act Relative to Medical Malpractice, 1975 Mass. Acts 362.

27 Little v. Rosenthal, 376 Mass. 573, 578, 382 N.E.2d 1037, 1041, (1978). The standard for a directed verdict is whether “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970), quoted in O'Shaughnessy v. Besse, 7 Mass. App. Ct. 646, 389 N.E.2d 1049, 1051 (1979).

28 See Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979). See also Kapp v. Ballantine, 1980 Mass. Adv. Sh. 755, 402 N.E.2d 463 (1980), where the court removed the bonding requirement as to three of the defendants, but allowed the bond to stand against another, since the offer of proof against the latter was found not sufficient.

29 A vicarious liability determination will center on the tortfeasor's agency status vis-a-vis the institution. See infra notes 31-38 and accompanying text. In fact, as argued throughout this Note, vicarious liability is not an appropriate subject for tribunal review. At the time of this Note's publication, however, the argument has not been made before the Massachusetts Supreme Judicial Court.

30 A finding concerning the hospital's corporate liability will focus on the reasonableness of the actions of the hospital qua hospital. See infra notes 42-47 and accompanying text.

31 See 1 D. Louisell & H. Williams, Medical Malpractice ¶ 16.01 (1981); A.R. Holder, Medical Malpractice Law 210-18 (2d ed. 1978). See also W. Prosser, Law of Torts § 69 (4th ed. 1971). A plaintiff generally alleges vicarious liability in a situation where recovery from the primary tortfeasor is likely to be inadequate. The usual situation in the medical malpractice context is where a hospital is added as defendant because a nurse carries no personal insurance or a doctor has only minimal coverage. Of course, many plaintiffs add hospitals as defendants because they are uncertain who may eventually be at fault where nurses, physicians, and others might be involved.

32 W. Prosser, supra note 31, at § 69.

33 Lisko, , Hospital Liability Under Theories of Respondeat Superior and Corporate Negligence, 47 UMKC L. Rev. 171, 173-76 (1978)Google Scholar. If the master may direct the servant's activities, particularly if the master may tell his servant how something is to be done, then he has the requisite right to control. Id. at 174; A.R. HOLDER, supra note 31, at 200. See also Restatement (Second) of Agency § 220(1) (1958) (setting out a general definition of servant). Many different types of evidence can be used to show a right to control. Payment of a salary, an employment contract, corporate bylaws, or hospital procedure manuals all might be probative evidence. Even if a right of control is found, a finding of liability may be blocked by certain exceptions to the general rule, such as when the servant is acting outside the scope of his employment.

34 Lisko, supra note 33, at 177 (explaining Mehlman v. Powell, 378 A.2d 1121, 281 Md. 269 (1977)). See also Restatement (Second) of Agency § 267 (1958). The rationale underlying § 267 in the Restatement is reliance by the injured party on the master, regardless of the actual agency status of the tortfeasor. Id. at § 267 comment a. In the hospital setting, apparent agency applies when a hospital has held a person out as its employee. If it also appears to the patient that a person is hospital employed, then the patient may recover from the hospital for injuries negligently inflicted by that person during treatment. Seneris v. Haas, 45 Cal. 2d 811, 291 P.2d 915 (1955); Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977). Under this theory, it does not matter that the hospital has no right to control the tortfeasor. The important fact is that the defendant hospital offered the services which resulted in plaintiffs injury.

Courts usually apply the apparent agency doctrine when plaintiff has been negligently injured in an emergency room. This is because hospitals often contract for emergency room services, and the physician who causes the injury may not be a hospital employee. Therefore there can be no vicarious liability in the traditional sense since there is no right to control. See A.R. Holder, supra note 31, at 213-14, and cases cited therein. Since the hospital held itself out as supplying emergency service by operating an emergency room, it will be held liable. Id.

35 Thus, vicarious liability may be found where no power of control exists at all. See supra note 34.

36 Lisko, supra note 33, at 176 (explaining Brown v. La Societe Francaise d e Bien Faisance Mutuelle, 138 Cal. 475, 71 P. 516 (1903)). See also Sepaugh v. Methodist Hosp., 30 Tenn. App. 25, 202 S.W.2d 985 (1946) (though conceivably merely a case of vicarious liability, the court emphasizes that the patient-plaintiff looked to the hospital for care and that the hospital supplied the physician). This modified standard is not as strict as the traditional test since the plaintiff need not show that in fact the principal had the right to order the activities of the actual wrongdoer. Lisko, supra note 33, at 176. The payment of a salary, combined with apparent agency, would be sufficient to establish vicarious liability. Id.

37 See supra note 32.

38 Defenses common to vicarious liability actions include the claim that the wrongdoer acted outside the scope of his employment when the injury occurred. See Lisko, supra note 33, at 178. See also Restatement (Second) of Agency § 219(2) (1958). In general, an employee acting to further purely personal ends, or where not acting in furtherance of his employment duties, is not acting within the scope of his employ. See Restatement (Second) of Agency § 228 (1958). The employer, therefore, will not be held liable. This follows from the general tests used to find vicarious liability. Since the master generally must have a right or the appearance of a right to control, actions outside the scope of this actual or apparent control cannot logically lead to liability, unless one applies a theory of strict, as opposed to vicarious, liability. Cf. Restatement (Second) of Agency § 219 comment d (1958) (outlining the limited nature of the employer/employee relationship). In effect, no relationship exists between master and servant at the time of the negligent action. Id.

A second defense available to a hospital is the borrowed servant doctrine. See Lisko, supra note 33, at 179-81. This theory provides that if a hospital employee is acting pursuant to a physician's orders, then the employee is deemed the servant of the physician and not the hospital. This situation often arises in the operating room. See A.R. HOLDER, supra note 31, at 206-10 and cases cited therein. The hospital escapes liability if it can prove that the alleged negligent act did not occur during a hospital controlled activity, but instead occurred during some action performed solely on a physician's direction. Id. A variation of this defense is the mutual benefit rule. Because both hospital and physician benefit from and have some control over an employee, the mutual benefit rule holds both liable regardless of who controlled the tortfeasor when the incident occurred. Id. at 207; Lisko, supra note 33, at 180.

39 Kapp v. Ballantine, 1980 Mass. Adv. Sh. at 762-63, 402 N.E.2d at 469, (citing Khoury v. Edison Elec. Illuminating Co., 265 Mass. 236, 164 N.E. 77 (1928)).

40 In Khoury v. Edison Elec. Illuminating Co., 265 Mass. 236, 164 N.E. 77 (1928), the court addressed the issue of the vicarious liability of an electric company for the torts of its employees. The court in Kapp obviously felt that there was no reason to treat hospitals differently than any other employer, as evidenced by the cite to Khoury in its opinion.

41 Id. In addition, although Massachusetts courts recognize the usual affirmative defenses to vicarious liability, these theories are not nearly as developed in Massachusetts in the hospital context as they are elsewhere.

42 Many comments, notes, and articles on the corporate liability of hospitals have been written since the seminal case of Darling v. Charleston Community Memorial Hosp., 33 Ill. 2d 326, 211 N.E.2d 253 (1965). See, e.g., Hanson, & Stromberg, , Hospital Liability/or Negligence, 21 Hastings L.J. 1 (1969)Google Scholar; Note, The Hospital-Physician Relationship: Hospital Responsibility for Malpractice of Physicians, 50 Wash. L. Rev. 385 (1975). See also Lisko, supra note 33, at 181.

43 Hanson & Stromberg, supra note 42, at 11.

44 See Lisko, supra note 33, at 183 and cases cited therein.

45 Id.

46 Darling v. Charleston Memorial Hosp., 33 111. 2d 326, 211 N.E.2d 253 (1965). See also Hanson & Stromberg, supra note 42, at 12-13. A hospital's negligent conduct in administering its operations and physical plant can also be included under the umbrella of corporate liability. See Hanson & Stromberg, supra note 42, at 11. These duties of administration and operation are beyond the scope of this Note since they are not medically related and are therefore not subject to tribunal screening. See infra text accompanying notes 76-109. See also Brodie v. Gardner Pierce Nursing and Rest Home, Inc., 1980 Mass. App. Ct. Adv. Sh. 863, 403 N.E.2d 1184 (1980) (slip and fall case not properly before medical malpractice screening tribunal).

47 The Illinois courts seem to have limited Darling to its facts. Only where the situation is such as to shock one's sensibilities will hospital liability be found under the negligent supervision theory. See Collins v. Westlake Community Hosp., [2 Ill. App. 3d 847, 852, 299 N.E.2d 326, 329 (1973). See also Zaremski, & Spitz, , Liability of a Hospital as an Institution: Are the Walls of Jericho Tumbling?, 16 Forum 225, 231-32 (1980)Google Scholar. Finding a hospital duty to supervise medical treatment may constitute an unwarranted intrusion into the patient-physician relationship. See Zaremski & Spitz supra, at 241. Corporate liability in this form can be quite burdensome since there may be situations where a hospital will not have reliable and reasonable means to supervise or control treatment. Many of the more recent commentators have noted that the courts will not apply Darling unless there is a grievous lack of care. This is appropriate since only this type of negligence is likely to come to the hospital's attention. Most minor mishaps probably go unreported and are quickly rectified. Therefore, the costs to hospitals, and eventually to consumers, of imposing corporate liability for negligent supervision would likely be very large. For these reasons, the duty to supervise medical treatment has not yet gained even minimal acceptance.

48 See infra note 138.

49 See infra notes 136-38 and accompanying text.

50 The term “empty shell” has its roots in an older theory o n hospital liability wherein a hospital was only responsible for its physical plant. Under this theory, a hospital could never be liable for the negligence of a physician since it was merely an “empty shell,” a place for the doctor to practice. The physicians were considered independent contractors. Schloendorff v. Society of N.V. Hosps., 211 N.Y. 125, 105 N.E.2d 92 (1914).

51 For example, the rise of technology, with its resultant expense, has made it practically impossible for an individual physician to own some of the more sophisticated tools of medicine. The hospital will generally purchase such equipment and hire doctors, sometimes termed “professional tenants,” to operate it. See also infra text accompanying notes 131-33.

52 See A. R. Holder, supra note 31, at 216, and cases cited therein.

53 But see infra notes 136-38 and accompanying text.

54 1980 Mass. Adv. Sh. 755, 402 N.E.2d 463 (1980).

55 1980 Mass. Adv. Sh. 1037, 403 N.E.2d 1166 (1980).

56 Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979). The tribunal will generally phrase its finding consistent with the language of section 60B. See Kapp, 1980 Mass. Adv. Sh. at 757, 402 N.E.2d at 466 (stating the tribunal finding was that “the offer of proof …. even if properly substantiated, [was] not sufficient to raise a legitimate question of liability appropriate for judicial inquiry.”)

57 Kapp, 1980 Mass. Adv. Sh. at 755-60, 402 N.E.2d at 465-68.

58 Id. at 762-63, 402 N.E.2d at 468-69.

59 Id.

60 Id. at 763, 402 N.E.2d at 469.

61 Gugino, 1980 Mass. Adv. Sh. at 1038, 403 N.E.2d at 1167.

62 Id. at 1038-39, 492 N.E.2d at 1167.

63 The court also stated that, where a plaintiff sues an HMO on other than a vicarious liability theory, the standard to be used in judging the offer of proofs sufficiency in the tribunal is the same for both HMOs and doctors. The court intimated that one might sue an institution directly rather than vicariously. Id. at 1040-41, 403 N.E.2d at 1168. This may be an important development in Massachusetts medical malpractice law. If the standard of proof is the same for physicians, HMOs, and hospitals, there indeed may be situations where a hospital owes a direct, treatment-related duty to its patients rather than owing a duty solely through an employee or agent. Thus, corporate liability may yet be developed as an alternative theory of hospital liability in Massachusetts. See infra note 138.

64 Kapp, 1980 Mass. Adv. Sh. 762-63, 402 N.E.2d at 469.

65 377 Mass. 514, 386 N.E.2d 1268 (1979).

66 Kapp, 1980 Mass. Adv. Sh. 759 n.6, 402 N.E.2d at 467 n.6.

67 See Brief for Appellant at 90-93, Brief for Appellee at 5-6, Kapp v. Ballantine, 1980 Mass. Adv. Sh. 755, 402 N.E.2d 463 (1980). In her brief, Kapp appears to have been interested in pursuing the corporate liability theory.

68 See infra notes 139-41 and accompanying text.

69 This conclusion is implicit only because the Kapp court never directly addressed the issue of jurisdiction. See supra notes 64-66 and accompanying text.

70 Gugino, 1980 Mass. 1041, 402 N.E.2d 1168.

71 See Brief for Appellant at 23-24, Gugino v. Harvard Community Health Plan, 1980 Mass. Adv. Sh. 1037, 403 N.E.2d 1166 (1980). Again the plaintiff pursued the corporate liability theory rather than the issue of jurisdiction.

72 There have been at least fifteen cases in the Massachusetts appellate courts in the past six years concerning section 60B.

73 Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979).

74 Id.

75 Id.

76 See supra note 72 and accompanying text.

77 373 Mass. 645, 369 N.E.2d 985 (1977).

78 The plaintiff argued that there was an equal protection violation since the statute discriminated against medical malpractice plaintiffs by requiring screening, when other tort plaintiffs were not forced through a similar process. The court rejected this argument on the grounds that the statute was rationally related to an acceptable legislative purpose and therefore not discriminatory. Paro, 373 Mass, at 649-50, 369 N.E.2d at 988-89. The plaintiff also claimed that due process was violated because “the bond requirement cuts off their access to the courts, thus denying them their constitutional right to be heard.” Id. at 651-52, 369 N.E.2d at 989. Since the bond requirement is flexible and discretionary, this argument was rejected as well. Id. at 652-54, 369 N.E.2d at 990-91. The court applied similar reasoning to the plaintiff s jury trial claim. Id. at 654-55, 369 N.E.2d at 991.

79 Id. at 656-57, 369 N.E.2d at 992.

80 Id. at 657, 369 N.E.2d at 992-93. This argument was used successfully in Illinois. The Illinois legislature enacted a substantially similar tribunal to that used in Massachusetts. The Illinois Supreme Court, in Wright v. Central DuPage Hosp. Ass'n, 63 Ill. 2d 313, 347 N.E.2d 736 (1976), held that, as established, the tribunal violated the Illinois Constitution's delegation of exclusive judicial power to the courts. Id. at 322, 347 N.E.2d at 739-40.

81 Paro, 373 Mass, at 657, 369 N.E.2d at 992-93.

82 The court stated: “The lawyer and 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.” Id.

83 "Finally, the plaintiffs argue that § 60B is unconstitutional because it allows the two lay panel members to override the judge in the decision of purely legal issues, such as questions relating to the admissibility of evidence." Id. at 657, 369 N.E.2d at 992 (emphasis added).

84 376 Mass. 573, 382 N.E.2d 1037 (1978).

85 Mass. Gen. Laws Ann. ch. 93A (West 1978).

86 Little, 376 Mass, at 576, 382 N.E.2d at 1040.

87 Id. at 577, 382 N.E.2d at 1041.

88 377 Mass. 514, 386 N.E.2d 1268 (1979).

89 The cause of action for breach of contract to supply a specific medical result was first recognized in Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973).

90 The Salem court explained the role of the tribunal in the judicial process:

The statutory function of the tribunal is, however, to separate malpractice claims into two classes: those appropriate for judicial evaluation and those involving merely an unfortunate medical result. G.L. c.231 § 60B, First. In performing this function, the tribunal may examine predominately medical evidence. Id. Fifth. The medical focus of a § 60B tribunal is further emphasized by the requirement that one member be a physician or, when the defendant is not himself a physician, a representative of the defendant's field of health care providers. Id. Third. All of these factors are strongly indicative of a legislative intention that a tribunal should evaluate only the medical aspects of a malpractice claim for the purpose of distinguishing between cases of tortious malpractice and those involving “merely an unfortunate medical result.” Thus, the question whether the parties made the agreement as alleged in the counterclaim is beyond the competence of a screening tribunal.

Id. at 521, 386 N.E.2d at 1272 (emphasis added).

91 An extensive discussion of the Salem case may be found at Note, Salem Orthopedic Surgeons, Inc. v. Quinn: Express Contract Actions—A Fitting Subject for Tribunal Review?, 16 New Eng. L. Rev. 93 (1980-81). The author there concludes that, regardless of the court's distinction as to medical and non-medical issues, a plaintiffs action based on contract may still be prejudiced by the pre-trial screening of the medical aspect of the claim. The SJC has apparently rejected this conclusion in Lubanes, where the court noted the limited nature of the tribunal inquiry in a contract action. Lubanes, 386 Mass, at 324-27, 435 N.E.2d at 1034-35.

92 379 Mass. 60, 393 N.E.2d 875 (1979).

93 The McMahon opinion states:

We hold that the issue whether the plaintiffs claim was barred by the statute of limitations was not within the jurisdiction of the tribunal, that it was error for the tribunal to invite or receive evidence bearing thereon, and that it would be error for such a tribunal to consider the issue as a factor in its ultimate decision. This is an issue which may be raised before the court at the trial of the action.

Id. at 67-68, 393 N.E.2d at 880.

94 Id. at 69, 393 N.E.2d at 880.

95 1980 Mass. App. Ct. Adv. Sh. 25, 397 N.E.2d 1300.

96 Id. at 26, 397 N.E.2d at 1301.

97 See supra notes 77-96 and accompanying text.

98 386 Mass. 320, 435 N.E.2d 1031 (1982).

99 Id. at 325, 435 N.E.2d at 1034.

100 Id. See also infra note 146.

101 Lubanes, 386 Mass, at 326-27, 435 N.E.2d at 1035.

102 A determination of who is liable in an action is quite different from a determination of whether anyone at all is liable under the facts and cause of action alleged in the complaint.

103 By defining the role of a statutorily created tribunal in the judicial process, the legislature implicitly sets the jurisdictional limits of its creation. See supra notes 73-74 and accompanying text.

104 See supra notes 73-74 and accompanying text.

105 MASS. Gen. LAWS Ann. ch. 231, § 60B (West Supp. 1979).

106 Id. See also supra text accompanying note 73.

107 McMahon, 379 Mass, at 69, 393 N.E.2d at 880.

108 In addition, the judge on the tribunal alone would decide questions of a purely legal nature. See Pan, 373 Mass, at 656-57, 369 N.E.2d at 992. See also supra notes 79-82 and accompanying text.

109 See supra notes 77-96 and accompanying text.

110 Though none of the earlier Massachusetts cases were explicit on this point, it obviously made no sense to the court to use the broad meaning of the language “legitimate question of liability” when construing the statute. Cf. Salem, 373 Mass, at 521, 386 N.E.2d at 1272 (stating that the screening generally was for the purpose of distinguishing “tortious malpractice [from] unfortunate medical results,” ignoring the statutory language “legitimate question of liability”). See also supra note 90.

111 Usually, more particular words or phrases within a statute will be construed as modifying general terms or phrases used in the same context. See, e.g., Roller v. Duggan, 346 Mass. 270, 273 191 N.E.2d 475, 478 (1963); Hodgerney v. Baker, 324 Mass. 703, 706, 88 N.E.2d 625, 627 (1949).

112 See supra notes 88-91 and accompanying text.

113 “Admissible evidence shall include, but not be limited to, hospital and medical records, nurses’ notes, x-rays and other records kept in the usual course of the practice of the health care provider.… ” Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979).

114 Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1979).

115 See supra notes 31-37 and accompanying text. This point becomes particularly clear when one considers the evidence that must be garnered to prove the “fact” of negligence on the one hand and vicarious liability on the other.

116 See Pan, 373 Mass, at 651, 369 N.E.2d at 989.

117 See McMahon v. Glixman, 379 Mass. 60, 68-69, 393 N.E.2d 875, 880-81 (1979). See also supra note 93.

118 “Each such action for malpractice shall.be heard by said tribunal within fifteen days after the defendant's answer has been filed.” Mass. Gen. Laws Ann. ch. 231, § 60B (West Supp. 1982).

119 Gugino, 1980 Mass. Adv. Sh. at 1040, 403 N.E.2d at 1168.

120 Lubanes, 386 Mass, at 325, 435 N.E.2d at 1034. See also infra note 146.

121 See Kapp, 1980 Mass. Adv. Sh. at 762-63, 402 N.E.2d at 469; Gugino, 1980 Mass. Adv. Sh. at 1040-41, 403 N.E.2d at 1168.

122 See infra note 141.

123 See infra note 138.

124 Kapp, 1980 Mass. Adv. Sh. at 762, 402 N.E.2d at 469.

125 386 Mass. 320, 435 N.E.2d 1031 (1982).

126 Arguably, informed consent was recognized in Massachusetts in Reddington v. Clayman, 334 Mass. 244, 134 N.E.2d 920 (1956). However, a clear standard was articulated only recently. See Harnish v. Children's Hosp. Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982).

127 Lubanes, 386 Mass, at 321, 435 N.E.2d at 1032.

128 Id. at 321-22, 435 N.E.2d at 1032-33.

129 Id. at 325.

130 See A.R. Holder, supra note 31, at 211.

131 See D. Louisell & H. Williams, supra note 31, at ¶ 16.08. Often, a group of pathologists will band together and form a corporation. This corporation will then contract with the hospital for the pathologists’ services. Technically, then, the corporation employs the pathologists.

132 The court in Paro intimated only that the judge decide minor legal points, not that he or she should reach a preliminary determination as to major issues in a case. See supra note 83 and accompanying text.

133 See supra note 119 and accompanying text.

134 See infra note 138.

135 Id.

136 In both cases, plaintiffs argued that corporate liability would be appropriate under the facts, though the issue was more clearly presented in Kapp. See Brief for Appellant at 90-93, Kapp v. Ballantine, 1980 Mass. Adv. Sh. 755, 402 N.E.2d 463 (1980); Brief for Appellant at 23-24, Gugino v. Harvard Community Health Plan, 1980 Mass. Adv. Sh. 1037, 403 N.E.2d 1166 (1980).

137 Kapp, 1980 Mass. Adv. Sh. at 762-63, 402 N.E.2d at 469.

138 In Gugino, the SJC may have implicitly accepted a more modern view of hospital liability:

The offer of proof prevails against a defendant doctor if there is evidence of (1) a doctor-patient relationship, (2) the doctor's failure to conform to good medical practice, and (3) resulting damage. A similar standard applies to the defendant nurse and to the Plan; in addition, if the Plan is to be held vicariously liable, there must be a factual basis for inferring that the Plan had power of control or direction over the conduct in question.

Gugino, 1980 Mass. Adv. Sh. at 1040-41, 403 N.E.2d at 1168 (citations omitted). As is clear from the language quoted above, the SJC equated physician malpractice with HCHFs potential liability as a treating institution, since a similar standard is applied in either case. At the same time, the court contrasted treatment-related liability with vicarious liability. Thus the court suggests that a direct action against a medical institution is legitimate in Massachusetts.

It is not clear what type of HMO-patient “relationship” will give rise to an HMO duty towards its patient. For the relationship to be similar to that which exists between physician and patient, as Gugino suggests it must be, it may have to be shown that the HMO was actually providing the patient with treatment. This treating relationship can be inferred from the duty to review the quality of a doctor's work. This duty to review can itself be extrapolated from the peer review provisions in most HMO-physician contracts. In short, a duty to review the quality of its physicians’ work gives rise to a “treating” relationship between HMO and patient, and this in turn may lead to corporate liability if the patient is injured by a negligent physician. In any event, this aspect of Gugino seems ripe for development and may eventually have an impact on Massachusetts law.

139 The jurisdiction of a judicial tribunal is always subject to challenge, and often it is appropriate for an appellate court to raise the issue on its own motion. “Courts and other adjudicatory bodies have both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent, regardless whether the issue is raised by the parties.” The Nature Church v. Board of Assessors of Belchertown, 1981 Mass. Adv. Sh. 2318,429 N.E.2d 329 (1981). See also Ruggieri v. City of Somerville, 1980 Mass. App. Ct. Adv. Sh. 1133, 1134, 405 N.E.2d 982 (1980) (a court should deal with jurisdictional issues as a preliminary question).

140 386 Mass. 320,435 N.E.2d 1031 (1982). See supra notes 98-101 and accompanying text.

141 Flagg v. Scott, the Appeals Court case contrary to Kapp and Gugino, was decided while Kapp was under consideration, and prior to argument in Gugino. The Flagg decision came down on January 3, 1980, the Kapp decision on March 20, 1980, and the Gugino decision on April 23, 1980. Flagg addressed directly the issue of tribunal jurisdiction in this context, but cannot be considered a controlling precedent in light of Kapp and Gugino. See also supra notes 95-96 and accompanying text.

142 Cf. Powell v. McCormack, 395 U.S. 486, 516-17 (1969). There the Court stated under the heading “VI. Justiciability” that under the facts of the case, “[f]irst, we must decide whether the claim presented and the relief sought are of the type which admit of judicial resolution.” Id. The concept of justiciability is slightly different from the point made here, but it is important to realize that considerations similar to those discussed by the Court in Powell may operate to take a case outside the purview of a particular judicial body. It is, as stated above, a question of power.

143 See supra notes 77-96 and accompanying text.

144 See supra notes 77-96 and accompanying text.

145 See supra notes 98-101 and accompanying text.

146 In Lubanes, the court stated, “(t)he performance of a surgical procedure by a physician without the patient's consent constitutes professional misconduct. As such, we think it is a type of “malpractice” within the meaning of G.L.C. 231 § 60B.” Lubanes, 386 Mass, at 325,435 N.E.2d at 1034 (emphasis added and citations omitted).

147 As shown above in outlining the pre-Kapp case law, the tribunal's focus is properly a purely medical one. See supra notes 77-96 and accompanying text. See also supra notes 103-117 and accompanying text.

148 This analogy should be used carefully, if at all. The first qualification is that posed by the second question of the proposed standard. The issue must be medical. In addition, the relation between a judge and jury at trial is quite different than the relationship between trial court and malpractice tribunal. But the analogy is helpful in distinguishing certain functions in the adjudicatory process. A trial judge determines what standard of care is applied, or whether a duty is owed, and the jury then applies the law to the facts. Similarly, the tribunal merely applies the law as it stands to the facts before it, and the determination of duty is left to the trial court.