A recent article published in Massachusetts Lawyers Weekly, “Makeover in the Works for Med-Mal Tribunals” by Pat Murphy, highlights a list of proposed changes to the Commonwealth’s medical malpractice tribunal process. The new proposed Superior Court Rule 73 has provoked a variety of reactions; but most will agree that the current system is in need of an upgrade.

As Murphy’s article points out, the purpose of the 30-year-old tribunal statue, M.G.L. c. 231 § 60B, is to screen for frivolous cases and promote efficiency in trying medical malpractice cases. The tribunal is designed to occur at the very beginning of a case, within 15 days of a defendant’s answer being filed; and the plaintiff can only proceed after an adverse finding by filing a $6,000 bond. In recent years, though, tribunals often take more than a year to convene. Plaintiffs’ and defense attorneys alike will agree that this only causes further delays in conducting meaningful discovery at the beginning of an already lengthy process.

Several provisions of proposed Rule 73 appear promising. The new rule will require plaintiffs to file an offer of proof within 15 days of a defendant answering the complaint. Presently, defendants often receive the offer of proof concurrent with the tribunal, sometimes a year or more after suit is filed. This new Rule 73 provision will certainly help move cases along by allowing defendants the fair opportunity to evaluate the plaintiff’s specific allegations and expert opinion(s) in a timely manner.

Additionally, Rule 73 provides a mechanism for parties to avoid unnecessary court appearances. It is not uncommon that the defense, while disputing liability, recognizes that the plaintiff has produced a sufficient offer of proof, together with an expert letter which addresses the minimum required elements to get past the initial “directed verdict” standard in place at the tribunal. In these instances, a separate tribunal is not necessary, and the parties can confirm their position on the record without appearing in court.

Despite these encouraging features, members of the med-mal bar have been quick to recognize that the proposed Rule 73 may not sufficiently address the biggest hang-up in the current process. As Murphy’s article states, the main cause of extended delays in the current system is that the clerks’ offices are having trouble finding medical professionals willing to serve as medical members for tribunals. Rule 73 shifts this burden from the clerks’ office to defense counsel without providing any relief on the substantive process of securing those members.

Rule 73, as drafted, asks defense counsel to obtain a list from the Massachusetts Medical Society of qualified and available medical professionals to serve on tribunals. The new rule also requires that this task be completed within 90 days; a process that has consistently taken clerks’ offices much longer to complete. Defendants could even forfeit the right to a medical member on the tribunal under the proposed rule if defense counsel merely runs into the same scheduling problems that the clerks’ offices are currently facing. In the alternative, Rule 73 would compel defense counsel to engage in additional motion practice to secure extension(s) of time.

Med-mal defense attorneys have expressed concern because their clients have a statutory right to a medical member on the tribunal, and the proposed Rule 73 does not appear to provide assistance in securing that right, but may actually dilute it.

Attorneys on both sides have identified the availability of medical tribunal members as the critical issue in amending this process. Accordingly, it has been suggested that one of the main goals of Rule 73 should be to take the steps necessary to increase the willingness of medical professionals to sit on these crucial panels.

The Superior Court is inviting comments on the new proposed Rule 73 through February 15, 2017. The Superior Court’s page on the new rule and information for submitting comments is here: http://www.mass.gov/courts/case-legal-res/rules-of-court/rule-changes-invitations-comment/notice-inviting-bar-to-comment-superior-court-rules.html.