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Getting a Medical Malpractice Case Through Massachusetts’ §60B Tribunal Requirement — Bodden v. Nicholson

tribunalMassachusetts requires that all medical malpractice claims go through a medical tribunal under Massachusetts General Laws Chapter 231 § 60B (“§60B”) to review the claims and decide whether medical malpractice occurred.

As an example, a recent Massachusetts appeals court decision ruled that a medical malpractice plaintiff did not bring sufficient evidence to allow the case to go to trial. In Bodden v. Nicholson, a Massachusetts appeals court decided against a plaintiff where a medical malpractice tribunal had denied the plaintiff’s request to assert claims against several medical practitioners.

The Medical Malpractice Tribunal
In order to screen medical malpractice cases, the Massachusetts legislature has §60B requiring a medical malpractice tribunal. Each tribunal consists of a judge, a doctor, and an attorney who decides the merits of the malpractice claim based upon whether the plaintiff has brought enough evidence to substantiate a “legitimate question of liability” for a jury. If the tribunal rules in favor of the plaintiff, the plaintiff can bring their medical malpractice case to trial. If a tribunal does not rule in a plaintiff’s favor, the plaintiff can still proceed with the case but only after posting a $6,000 bond.

Note on 1:28 Decisions
It should be noted that Bodden v. Nicholson is a 1:28 decision. A 1:28 decision is a three-judge panel opinion that has not been officially published. After 2008, the Massachusetts courts allowed 1:28 opinions to be cited for persuasive value only; they don not have any binding value. However, the case does provide an example of how Massachusetts courts handle §60B opinions.

Facts of Bodden v. Nicholson
In Bodden v. Nicholson, Bodden, an insulin-dependent diabetic suffered a wound on the bottom of her foot after walking on a rocky beach with her flip-flops. She was treated by a nurse practitioner who prescribed an antibiotic. Due to the nature of her diabetes she continued to visit Massachusetts General Hospital, seeing several practitioners. The practitioners and Massachusetts General noted that her injury continued to heal and had no sign of infections. After several months, Bodden developed an ulcer on the top of her foot, and after three days of dry heaving and swelling of her foot, she finally visited the hospital where it was determined that she had an internal infection, which required an amputation from her knee down. She brought a medical malpractice claim.

After serving the various practitioners and the hospital with the claim, the court scheduled a medical malpractice tribunal to determine the legal sufficiency. The three person tribunal composed of the required judge, physician, and lawyer weighed the expert testimony that Bodden provided. At a tribunal a plaintiff submits a written description of the facts along with expert testimony outlining the nature of the medical malpractice. The tribunal allowed for the case to go forward against one practitioner and the hospital; however, as to the rest of the practitioners, the tribunal did not find a legitimate question of medical malpractice. The purpose of a tribunal is to weed out cases that are not medical malpractice and are merely bad outcomes of competent medical treatment. Under §60B, Bodden could still proceed with the claims. §60B allows a plaintiff to proceed to trial with an unfavourable tribunal ruling if the plaintiff posts a $6,000 bond within 30 days of the tribunal.

Bodden did not post the bond but requested an appellate hearing to overturn the tribunal ruling, arguing that her expert presented a legitimate question of liability appropriate for judicial inquiry. The plaintiff also claimed that the tribunal should not have treated each defendant independently.

Court Ruling
The appellate court noted that they were not required to adopt the position of the expert. Also, the appellate court disagreed with the plaintiff and found that she needed to submit a sufficient question of liability against each practitioner individually.

When ruling on a tribunals finding as to the a legitimate question of medical malpractice, an appellate court should apply the same standard they apply to a defendant’s motion for directed verdict. Appraisal of the weight and credibility of the evidence is impermissible. Gugino v. Harvard Community Health Plan. The tribunal should focus on whether (1) a doctor-patient relationship existed, (2) there is evidence showing the doctor’s performance did not conform to good medical practice, and (3) damage resulted from the doctor’s practice.

The court affirmed the tribunals findings. The tribunal had determined that Bodden had only discussed the blister on the bottom of her foot. After developing the blister on the top of her foot and dry heaving, she did not report to the hospital for three days, preventing an immediate examination of the foot. Bodden argued that the practitioners should have done a bone scan or blood work, which may have indicated the internal infection. The court noted that an internal infection is not in and of itself proof of medical malpractice. Just because a treatment has an unfortunate medical outcome does not indicate medical malpractice. A plaintiff must show medical malpractice.

If You Have Been Injured
While the standard for a tribunal should preclude weighing the evidence, when bringing a medical malpractice claim before a tribunal, it is important to have an attorney that knows how to lay out evidence supporting a medical malpractice claim. If you believe you have been injured due faulty actions of a medical practitioner, you should speak with one of our experienced medical malpractice attorneys so that you can make sure you get the compensation you deserve.

Local attorney, John C. Manoog III, has extensive experience handling medical malpractice claims. For a free initial consultation, call the office at 888-262-6664 or reach us by email. There is always someone available to talk to you about your case.

Additional Resources:
Section 60B: Malpractice actions against providers of health care; tribunal, 2014, The General Court of the Common Wealth of Massachusetts

Medical Liability/Medical Malpractice Laws: Massachusetts, Aug 15, 2011, National Conference of State Legislatures

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Can Attorney’s Payment of Medical Malpractice Bond Be a Factor in Setting Bond Amount — Faircloth v. DiLillo, Nov. 20, 2013, Cape Cod Injury Lawyer Blog

Massachusetts Transvaginal Mesh Lawsuit Moves Forward, Oct. 16, 2013, Cape Cod Injury Lawyer Blog