Massachusetts Medical Society: Updates to the Medical Malpractice Tribunal

Updates to the Medical Malpractice Tribunal

Physicians Should Know:  The courts have recently adopted a new rule dealing with the Medical Malpractice Tribunal

What is the Tribunal?  A tribunal—consisting of a judge, an attorney, and a physician—screens every medical malpractice suit against a physician in Massachusetts before trial to determine whether there is a legitimate question of liability for a court to decide, or whether the claim concerns merely an unfortunate medical result.

How is the Tribunal Convened? Court clerks schedule the tribunal hearings.  The physician member of the tribunal is chosen from a list that the Society provides of physicians representing the field of medicine in which the alleged injury occurred and licensed to practice in the Commonwealth, who practice outside the county where the defendant practices or resides. 

So Why is there a New Rule? Unfortunately, in recent months and years, the clerks have been struggling to find physicians willing to participate.  Even with access to a Society database of hundreds of physicians who have enrolled themselves as interested in participating, it can take a year or more before a clerk can convene a tribunal.  This delay is bad for the courts, bad for the plaintiff, and bad for the physician defendant.
To address the problem, the new rule requires, among other things, that the plaintiff provide an offer of proof to the defendant early in the process, and that the defendant can then decide whether a tribunal is necessary. 

What Can I Do? If a defendant asserts the right to a tribunal, it is important that the tribunal hearing be thorough and robust.  If the clerks are unable to find a physician to serve on the tribunal, then this new rule provides that the hearing may be held before a single judge.  To prevent this from happening, and to protect the usefulness of the tribunal, we need to ensure active physician participation on tribunals.  Please complete this form to express your willingness to serve on a tribunal, and then let your office staff know that you may get a call from a court clerk.

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