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Surety Bonds in Medical Malpractice Claims? New Massachusetts Case Law

Medical malpractice cases allow plaintiffs to recover for negligent errors made by doctors and other medical professionals, some of which can and do cause grave injuries to plaintiffs. One important (though perhaps lesser-known) fact about medical malpractice cases in Massachusetts: in order to proceed with a claim, the plaintiff must first file his or her claim with the medical malpractice tribunal of the Commonwealth.

According to Massachusetts General Laws chapter 231, section 60B, "[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth . . . and an attorney authorized to practice law in the commonwealth." During the tribunal hearing, the plaintiff is required to present certain offers of proof, and the tribunal "shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result."

In the event that the plaintiff is unable to get past this hurdle, and the tribunal finds for the defendant, the plaintiff must then post a bond in order to proceed with the claim. As the statute proscribes: "the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of [$6,000] in the aggregate secured by cash or its equivalent," which will be "payable to the defendant . . . for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment."

But just what is meant by “bond” in this context? Is it sufficient for the plaintiff to post a surety bond, which may be secured for a mere percentage of the $6,000 figure? Or, is the plaintiff required to post the full amount? A recent decision by the Massachusetts Supreme Court addressed just that issue.

In Polanco v. Sandor, the high court decided this exact question. The plaintiff in that case brought suit against the defendant doctor, along with two others. After undergoing review by the malpractice tribunal, the plaintiff’s claim was found not to have sufficient evidence to raise a legitimate medical malpractice claim. Undaunted, the plaintiff filed a surety bond in the required amount of $6,000. The defendant filed a motion to strike, claiming that the surety bond was insufficient to satisfy the statutory requirement, and the Superior Court judge allowed that motion. The plaintiff appealed. The Appeals Court agreed with the defendant and affirmed the trial court’s decision.

“Where an accepted purpose of the statute is to discourage a plaintiff from pressing forward with what a tribunal has determined to be unmeritorious claims, and where, to that end, the statute requires a bond in the amount of $6,000 in "cash or its equivalent," allowing a plaintiff to proceed after paying only a modest sum (here, $120) rather than the statutorily prescribed $6,000 would not accomplish the statute's objective,” the Court held. “The point is not to punish a plaintiff; the point is to discourage unmeritorious claims and to compensate a defendant for costs should the plaintiff's claims ultimately fail. That the bond requirement is not punitive does not, however, somehow render a surety bond equivalent to cash[.]”

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