Massachusetts Superior Court Rule 73 Alters Tribunal Process

By: Greg Vanden-Eykel

Effective January 1, 2018, Massachusetts Superior Court Rule 73 will govern all medical malpractice cases pursuant to G.L. c. 231, § 60B. The new rule alters the procedures for serving Offers of Proof, requesting tribunals, and appearing for trial assignment conferences.  The new Rule still applies to all “providers of health care” as defined in G.L. c. 231, § 60B prior to the enactment.

What Does Rule 73 Require?

 Rule 73 creates the following procedural deadlines, all of which are calculated from the date of the Defendant’s Answer to the Complaint:

  • 15 Days: Plaintiffs file Offer of Proof with the Court and serve a copy upon defendants.
  • 30 Days: Any party demanding a tribunal files and serves a “Demand for Tribunal” with the Court. The “Demand for Tribunal” specifies each aspect of the Offer of Proof that the filing party claims to fail to raise a legitimate question of liability appropriate for judicial inquiry. Where the defendant is a licensed physician or medical institution, the defendant also serves the Massachusetts Medical Society with his/her “Demand for Tribunal.” If the defendant fails to timely file the “Demand for Tribunal,” the defendant waives his/her right to a tribunal.
  • 60 Days: For claims against licensed physicians, Massachusetts Medical Society files with the Court a case-specific list of physicians representing the subject field of medicine who may serve as tribunal members and who practice outside of the county where the defendant practices.
  • 90 Days: For claims against providers of health care other than licensed physicians, filing party obtains and submits to the Court a case-specific list of representatives practicing in the subject medical specialty and licensed in Massachusetts. The providers of health care obtain this list from the pertinent Massachusetts licensing agency. If the defendant does not submit a case-specific list within this 90-day period or the Medical Society fails to submit its list of physicians within 90 days, the Court shall schedule a single justice hearing to determine the sufficiency of the Offer of Proof. The defendant may file a motion for reconsideration by the full tribunal if a case-specific list is provided after the 90-day period and the single justice hearing has occurred.

When will tribunals convene?

As soon as practicable after the Court receives the case-specific list of “providers of health care” from the Massachusetts Medical Society or the filing party.

What if plaintiff fails to timely file an Offer of Proof or the Offer of Proof is deemed insufficient?

Rule 73 does not alter the requirement that the plaintiff pay a $6,000 bond if the plaintiff fails to present sufficient evidence to raise a legitimate question of liability for judicial review. Likewise, the plaintiff may still file a motion to seek the reduction of the bond amount if he/she can establish indigence.

What are trial assignment conferences?

Within 18 months of the filing of the Complaint, the Court schedules a trial assignment conference where the parties 1) commit to a trial date within the tracking order; 2) commit to expert disclosure deadlines; and 3) select a date for a final pre-trial conference.

For more information or if you have questions about the impact of this Rule on your existing medical malpractice matters, policies, and/or procedures, please contact your Barton Gilman attorney or Greg Vanden-Eykel at gvandeneykel@bglaw.com or 617.654.8200.

Greg Vanden-Eykel, an attorney at Barton Gilman, successfully represents Massachusetts physicians, nurses, long-term care facilities, medical institutions, and health care facilities in medical malpractice matters before federal and state courts and administrative agencies.