SCOTT B. AUSTIN & another [Note 1] vs. BOSTON UNIVERSITY HOSPITAL & others. [Note 2]

WILKINS, J. A judge of the United States District Court, District of Massachusetts, has certified four questions to us concerning the application and interpretation of G. L. c. 231, Section 60B, inserted by St. 1975, c. 362, Section 5, which provides for a preliminary hearing by a tribunal in every action for malpractice, error, or mistake against a provider of health care. See S.J.C. Rule 3:21, as amended,

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366 Mass. 871 (1974). These questions, which are set forth in the margin, [Note 3] arise from the filing of a complaint on December 31, 1975, in which the plaintiffs allege that the defendant hospital and the defendant physicians violated their contractual obligations, committed a breach of warranty, were negligent, and committed a battery on the plaintiff, Scott B. Austin. The plaintiffs also allege that the defendant nurses were negligent in their treatment of Scott B. Austin. [Note 4]

Section 60B provides that each medical malpractice action "shall be heard by a tribunal consisting of a single

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justice of the superior court, a physician licensed to practice medicine in the commonwealth ... and an attorney authorized to practice law in the commonwealth ...." [Note 5] 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." The tribunal must hear the medical malpractice action "within fifteen days after the defendant's answer has been filed." "If a finding is made for the defendant the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of [$2,000] ... payable to the defendant for costs assessed, including witness and experts [sic] fees and attorneys [sic] fees if the plaintiff does not prevail in the final judgment." The Superior Court judge in his discretion may increase the amount of the bond, and, if the plaintiff is indigent, the judge may reduce the amount of the bond but may not eliminate the requirement of a bond. "If said bond is not posted within thirty days of the tribunal's finding the action shall be dismissed."

Statute 1975, c. 362, Section 13, provides that Section 5, by which G. L. c. 231, Sections 60B-60E, were inserted in the General Laws, "shall take effect on ... [January 1, 1976]." This provision has prompted the first question certified to us because, as already noted, the complaint in this case was filed on December 31, 1975.

1. The first question inquires whether Section 60B applies to a medical malpractice action in which the complaint was filed before January 1, 1976, but no answer was filed until after that date. The basic question is what the Legislature intended by providing that Section 60B "shall take effect on ... [January 1, 1976]." St. 1975, c. 362, Section 13. The plaintiffs argue that Section 60B applies only to actions entered on and after January 1, 1976. The defendants contend that Section 60B

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applies to all medical malpractice actions pending on January 1, 1976, or at least to those actions which had not passed beyond the procedural stage at which a tribunal would be convened. In this case, of course, as a practical matter, no answer could have been filed prior to January 1, 1976, and it is the filing of a defendant's answer which occasions the appointment of a tribunal. [Note 6]

The question is one of legislative intent, and, in this instance, the Legislature has given no explicit guidance on the point. Section 60B is largely procedural and, if applied to existing medical malpractice claims, would not interfere with the reasonable expectations of the parties at the time of the transactions giving rise to those claims. Cf. Yates v. General Motors Acceptance Corp., 356 Mass. 529, 531 (1969). On the other hand, a plaintiff who fails to persuade the tribunal that he has a meritorious claim may proceed only by assuming the risk of liability (to the amount of the bond) for the costs of the defense of each defendant who thereafter prevails in the action. By imposing liability for legal costs and expenses on an unsuccessful litigant, Section 60B contains an element of substance, and not merely procedure. Our general rule, easily stated but not always easily applied, is to construe statutes which deal with substantive rights, rather than remedies or procedure, as operating prospectively only, unless the Legislature has stated the contrary explicitly. See City Council of Waltham v. Vinciullo, 364 Mass. 624, 626-628 (1974); Hein-Werner Corp. v. Jackson Indus. Inc., 364 Mass. 523, 525 (1974); Lindberg v. State Tax Comm'n, 335 Mass. 141, 143 (1956). We think it clear that the Legislature intended

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that Section 60B apply to at least certain existing causes of action. No party claims otherwise. However, because Section 60B has a substantive aspect, we shall construe Section 60B as applicable only to those medical malpractice actions to which it clearly appears the Legislature intended that it apply. Any uncertainty must be resolved against retroactive application of the statute.

We reject the defendants' argument that Section 60B applies to all medical malpractice actions pending on January 1, 1976. We doubt that the Legislature intended that our overburdened Superior Court should undertake the appointment of tribunals in all such pending actions. The pattern of Section 60B does not invite such a broad construction. Section 60B requires the appointment of a tribunal and a hearing before it within fifteen days after the defendant's answer has been filed. It makes no reference to cases in which answers have already been filed. We think it clear that the Legislature did not intend Section 60B to apply to all pending, untried medical malpractice actions.

Although the issue is a closer one, we also conclude that the Legislature did not intend Section 60B to apply to a medical malpractice action pending on January 1, 1976, in which a defendant had not filed an answer. Such an interpretation would create a problem in every case involving codefendants where one defendant had filed an answer before January 1, 1976, and another defendant had not. Statute 1975, c. 362, generally, and G. L. c. 231, Section 60B, in particular, give no guidance as to what should be done about a tribunal in such a case. We think that the only reasonable construction of the provision that Section 60B "shall take effect on ... [January 1, 1976]" is that Section 60B shall apply to medical malpractice actions filed on and after January 1, 1976. Such a clear and easily implemented commencement date for Section 60B procedures appears to us to be the result most likely intended by the Legislature's direction that Section 60B "shall take effect on ... [January 1, 1976]."

It is true that this case presents the strongest circumstances in support of a rule which makes Section 60B applicable to medical malpractice actions in which answers are filed

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after January 1, 1976, because here no answer could have been filed before that date, as a practical matter. However, we find no indication of any legislative intent that an exception should be made to the general rule which we think is applicable. In that circumstance, the bias against retroactivity, in the absence of a clear direction from the Legislature, operates to produce the result we have stated.

The answer to the first question is "No." Section 60B does not apply to this case. In view of this conclusion, it is not necessary for us to answer the remaining questions, each of which is of significance in the context of this case only if Section 60B applies. However, we suspect that there are already and, in any event, will be other medical malpractice actions which will present the same issues in the Federal courts. Therefore, we shall discuss the remaining questions.

2. The second question asks what, if anything, should be done if a medical malpractice action is brought in a court other than the Superior Court. We will answer this question as it applies to the courts of the Commonwealth. The answer may be of some assistance to Federal District Court judges in determining what course to follow. We shall not presume, however, to advise Federal judges concerning the extent to which the provisions of G. L. c. 231, Sections 60B-60E, should be applied in medical malpractice actions pending before them. That is a question of Federal law.

We suspect that the vast majority of medical malpractice actions commenced in this Commonwealth are commenced in the Superior Court or, if not entered there, promptly removed to that court before trial by action of the defendant. See G. L. c. 231, Section 104, permitting the immediate removal to the Superior Court of actions involving a claim of more than $4,000. In theory, and perhaps in practice, some medical malpractice cases could be entered and remain in the District and Municipal Courts. There are no other courts in the Commonwealth where such an action logically could be brought.

Section 60B states that every medical malpractice action

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"shall be heard by a tribunal." The Legislature appears to have directed that every such case must be appraised by a tribunal as defined in Section 60B. There is no apparent exception. Thus, if a medical malpractice action is entered in a District or Municipal Court of this Commonwealth and not removed to the Superior Court, it must be transferred to the Superior Court for consideration by a Section 60B tribunal. Thereafter, the case will be subject to trial in the District or Municipal Court. We do not read Section 60B as giving the Superior Court exclusive jurisdiction of medical malpractice actions. For example, if a medical malpractice action is subject to transfer to a District Court for trial under G. L. c. 231, Section 102C, the action may be transferred for trial in a District Court after a consideration by a Superior Court tribunal.

As we have said, we doubt the problem addressed by this second question is a serious practical one in the courts of the Commonwealth. If it is, the Legislature may wish to address the problem. As far as the Federal District Courts are concerned, if it is determined that a tribunal should pass on a particular medical malpractice action brought in a Federal court, that the Federal court should not fashion its own tribunal, and that it is appropriate that a tribunal appointed by the Superior Court express its views on the case, then, on appropriate reference to the Superior Court, a Section 60B tribunal will be appointed and act on the matter, after which its findings will be transmitted to the clerk of the Federal court.

The defendants have argued that the second question should be answered "Yes," and we agree. A medical malpractice action brought in a court other than the Superior Court must be referred to a tribunal in the Superior Court for action in accordance with Section 60B and its associated sections. We repeat, however, that we express no view on what a Federal District Court should do.

3. The third question concerns the obligation, if any, of a court other than the Superior Court to create its own tribunal if reference to a tribunal of the Superior Court is not required by Section 60B. Because we have indicated in

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our answer to the second question that reference to a tribunal in the Superior Court is required, this question need not be answered.

4. The fourth question asks whether a medical malpractice action must be dismissed if a tribunal finds that "the plaintiff's case is merely an unfortunate medical result" (Section 60B) and the plaintiff fails to file a bond in accordance with Section 60B. A bond is required in such a case, although a judge may reduce the amount of it in the event of the plaintiff's indigency. Section 60B is clear that, if the bond is not posted within thirty days of the tribunal's finding, the action shall be dismissed. The answer to the fourth question is "Yes."

5. In summary, we need not answer the third question. We answer the first question "No." We answer the second and fourth questions "Yes." The procedures described in Hein-Werner Corp. v. Jackson Indus. Inc., 364 Mass. 523, 530-531 (1974), for distribution of this opinion as answer to the questions certified shall be followed.

So ordered.