G.
L. c. 231, § 60B
Standard
of Review
The purpose of a medical malpractice tribunal is to determine whether a plaintiff has enough evidence of malpractice by a health care provider to take the claim to court. In other words, the tribunal assesses whether the plaintiff’s evidence raises a legitimate question of liability for a court to decide, or
whether the plaintiff’s claim concerns merely an unfortunate medical result. The tribunal’s decision on this question is a collective one, with all three panel members participating equally.
The tribunal consists of a Superior Court judge, a Massachusetts physician, and a Massachusetts attorney. The plaintiff presents evidence to the tribunal through an offer of proof. This evidence can include, among other things, hospital and medical records, statements from experts, and information from published
treatises. Only substantial evidence can be considered by the tribunal. Substantial evidence is evidence that a reasonable person might accept as adequate to support a conclusion.
To persuade a tribunal that a claim merits being decided by a court, the plaintiff must have enough evidence to warrant a jury finding that three assertions are probably true:
- the defendant is a provider of health care, generally meaning a person, corporation, facility, or institution licensed in Massachusetts to provide health care, or an agent thereof;
- the health care provider failed to conform to the standard of care applicable to the health professional; and
- damage resulted from that failure.
When evaluating the plaintiff’s evidence, the tribunal does not decide whether it believes that these three assertions are in fact true, that is, the tribunal does not examine the weight or credibility of the evidence. Instead, the tribunal decides whether a
reasonable person, taking all of the evidence in the light most favorable to the plaintiff and making reasonable inferences from that evidence in the plaintiff’s favor, could conclude that the plaintiff established all three of the assertions. Inferences are reasonable if they are based on probabilities
rather than possibilities.
In evaluating an expert’s report, it is appropriate for the tribunal to consider whether the offer of proof establishes (a) that the expert is familiar with the applicable standard of care, and (b) has applied that standard. The tribunal may also consider whether an
expert on the issue of causation has the required education, background, training and experience to offer the opinion. The causation inquiry is whether there is a greater likelihood or probability than not that the harm to the plaintiff flowed from the conduct for
which the defendant was responsible, not whether the defendant’s negligence is the exact cause of the harm or that there was no possibility that the harm would have occurred absent the negligence. Finally, the tribunal may reject the expert’s report if it is based on speculation, conclusory allegations, or
assumptions not supported by facts. The line between impermissible speculation and permissible inference is not a clear bright line but is one that turns on an informed judgment of the reasonableness of the inference drawn.
This description has been prepared with input
from the Massachusetts Superior Court.
