Originally from Dispute Resolution Journal

MEDICAL MALPRACTICE—APPLICABLE LAW—MASS. GEN. LAWS ch. 231,§60B

The Massachusetts medical malpractice statute requiring a preliminary hearing before a medical malpractice tribunal governed the plaintiff's negligence suit in federal court, and the action was properly dismissed because the plaintiff failed to comply with that statute. Feinstein, a citizen of Rhode Island, claimed negligence on the part of the hospital which resulted in his contracting hepatitis after a blood transfusion, and commenced an action based on diversity in federal court. The hospital moved to stay the court proceedings pending determination of the merits of the case by a medical malpractice tribunal pursuant to Mass. Gen. Laws ch, 231, §60B. The court granted the defendant's motion, and plaintiff appealed, objecting to the application of Massachusetts law as a destruction of the plaintiff's benefit of federal diversity jurisdiction. The statute also requires that if the tribunal finds for the defendant, the plaintiff must file a $2,000 bond to cover costs if he or she wishes to pursue the matter through judicial channels. The Court of Appeals for the First Circuit held that the Massachusetts statute was applicable to the action, and that, since the plaintiff failed to post the requisite bond within 30 days of the tribunal hearing, as required by the statute, the suit was properly dismissed by the district court. Feinstein v. Massachusetts General Hospital, 643 F.2d 880 (1st Cir. 1981).