MATTHEW HARLFINGER, a minor,By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellants v.HOWARD MARTIN M.D., Defendant/Appellee____________________BRIEF OF AMICUS CURIAECHILDREN'S

7/29/2019 MATTHEW HARLFINGER, a minor,By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellants v.HOWARD MARTI

1/53

COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT

SJC No. 08356 ____________________

MATTHEW HARLFINGER, a minor,

By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellants

v.HOWARD MARTIN M.D.,

Defendant/Appellee

____________________

BRIEF OF AMICUS CURIAECHILDREN'S WATCH____________________

On Appeal From An Order Of The Suffolk Superior Court

____________________

Susan Vanessa ORourke von Struensee, Esq.Children's WatchCambridge, MA 02138(617) 492-4890


2/53

Table of Contents

Page

Table of Authorities i

Identity of Amicus Curiae 1

Statement of Interest of Amicus Curiae 1

Statement of the Issues Presented for Review 1

The Nature of the Alleged Medical Malpractice Insurance

Crisis 2

The Legislative History Surrounding c.231 sec. 60D 7

Summary of Argument 7

Argument 7

I. THIS COURT SHOULD TAKE CLOSE, INDEPENDENT SCRUTINY OFLEGISLATION LIMITING THE RIGHT OF MEDICAL MALPRACTICE VICTIMS TO

REMEDY 9

A. It is the Constitutional Role of the Judiciary to Declare

Invalid Acts of the Legislature Which Exceed the Authority Granted

by the People of the Commonwealth of Massachusetts 9

B. The Circumstances Surrounding the Enactment of the Statute

Undermine the Presumption of its Constitutionality 11

1. The Proponents of the Statute May Have Misled the Legislatureas to the Nature of the "Insurance Crisis"

12

C. Limits on the Right to Remedy and Limits on the Rights of

Children Warrant Strict or Heightened Scrutiny Under Equal

Protection 14


3/53

D. The Medical Malpractice Statute of Repose and Shortened Statute

of Limitations for Children Should be Stricken as Violative of the

Right to a Remedy Guaranteed by the Massachusetts Declaration of

Rights and of Equal Protection and Due Process 16

1. Medical Malpractice Statutes of Repose Violate the Due Process

and Equal Protection Provisions of the Massachusetts Declaration

of Rights 18

E. Children Enjoy the Same Rights to Protection and to Legal

Redress for Wrongs Done them as Others Enjoy; Only the Strongest

Reasons, Grounded in Public Policy, Can Justify Limitation or

Abolition of these Rights. No Public Policy Reasons Exist to

Justify Depriving Children of their Rights to Remedy Medical

Malpractice 19

II. M.G.L. c. 231 sec. 60D DISCRIMINATES AGAINST VICTIMS OF

MEDICAL MALPRACTICE IN VIOLATION OF THE GUARANTEE OF

EQUAL PROTECTION 29

A. M.G.L. c. 231 Sec.60D Discriminates Against Victims of Medical

Malpractice 30

B. The Medical Malpractice Statute of Repose Should be Subject to

Heightened Scrutiny 30

III. MEDICAL MALPRACTICE STATUTES OF REPOSE BEAR NO RATIONALRELATIONSHIP TO LEGISLATIVE GOALS 33

A. The Relationship Between the Classification and Legislative

Goals Must Be Rational Under the Circumstances in Which the

Statute Will Operate

33

B. Even if the Court Applies the Most Lenient and Deferential

Standard to Legislation, that the Statute Bear a Rational

Relationship to a Legitimate State Purpose it is Clear that theStatute of Repose Cannot Pass Constitutional Muster 36

1. The Medical Malpractice Statute of Repose is not Rationally

Related to Promoting More Affordable Health Care to the Public,

and Has Not Accomplished That Purpose. There is No Rational

Relationship Between the Medical Malpractice Statute of Repose and

the Purported Goal of Affordable Health Care


4/53

for the Public 38

C. Even if the Statute Actually Achieved Its Purpose of Reducing

the Costs of Health Care, Which It Does Not, it is Still

Unconstitutional Because the Means of Achieving this Goal are"Unreasonable and Arbitrary." 39

CONCLUSION 40


5/53

TABLE OF AUTHORITIES

Cases

Page

American Academy of Pediatrics v. Heckler, 561 F. Supp. 403. 22

American Bank & Trust Co. v. Community Hosp., 683 P.2d 670 (Cal.

1984).

4

Anderson v. Wagner, 79 Ill. 2d 295, 37 Ill. Dec. 558, 402 N.E.2d

560 (1980). 3

Anderson v. Phoenix Inv. Counsel of Boston, 387 Mass. 444 (1982).

36

Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Tex. 1980). 32

Anson v. American Motors Corp., 747 P.2d 581 (Ariz. App. 1987).

6

Anthony v. Koppers Co., 284 Pa. Super. 81, 425 A.2d 428

(1980). 2

Armijo v. Tandyish, 98 N.M. 181, 646 P.2d 1245 (Ct. App. 1981)

3

Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978). 16

Austin v. Litvak, 682 P.2d 41 (Colo. 1984). 7,21

Baird v. Attorney General, 371 Mass. 741 (1977). 27

Bolin Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala. 1983). 2

Carey v. Populations Services International, 431 U.S. 678

(1979). 31,

33

Cargill v. Waste Management, Inc., No. 95 L 7867 (Ill. Cir. Ct.

1st Dist., May 22, 1995). 18

Carr v. Broward County, 505 So. 2d 568 (Fla. App. 1987).3

Carr v. Broward County, 541 So. 2d 92 (Fla. 1989). 3


6/53

Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). 7

Carson v. Maurer, 424 A.2d 825 (N.H. 1980). 7

Cioffi v. Guenther, 374 Mass. 1, 370 NE2d 1003 (1977). 24,32

City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).

passim

Coffey v. Bresnahan, 506 A.2d 310 (N.H. 1986). 7

Cole v. League for Planned Parenthood, 530 A.2d 1119

(Del. 1988). 2

Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982). 3

Commission of Public Health v. Bessie M. Burke Memorial Hospital,

323 N.E.2d 309, 366 Mass. 734 (1975). 19

Cournoyer v. M.B.T.A., 744 F.2d 208 (1st. Cir. 1984). 36,38

Craig v. Boren, 429 U.S. 190 (1976). 33

Crier v. Whitecloud, 496 So. 2d 305 (La. 1986). 3

Davis v. Dow Chemical Corp., 819 F.2d 231 (9th Cir. 1987. 6

Dawson v. Gerritsen, 720 S.W.2d 714 (Ark. 1986). 3

DeLuna v. Rizkallah, 754 S.W.2d 366 (Tex. App. 1988). 7

Douglas v. Hugh A. Stallings, 870 F.2d 1242 (7th Cir. 1989) 3

Duffy v. King Chiropractic Clinic, 17 Wash. App. 693, 565 P.2d 435

(1977). 3

Duke Power v. Carolina Environmental Study Group, 438 U.S. 59

(1978). 18

Ecker v. Town of West Hartford, 205 Conn. 219, 530 A.2d 1056

(1987). 2

Ernst v. Faler, 237 Kan. 125, 701 P.2d 939 (1985). 14

Farley v. Engelken, 740 P.2d 1058 (Kan. 1987). 12, 16


7/53

Fitz v. Dolyak, 712 F.2d 330 (8th Cir. 1983). 3

Foley v. Connelie, 435 U.S. 291 (1978). 33

Gaines v. Preterm-Cleveland, 514 N.E.2d 709 (Ohio 1987).7

Gaudette v. Webb, 362 Mass. 60 (1972). 21

Gay v. Rabon, 280 Ark. 5, 662 S.W. 2d 836 (1983). 2

Hardy v. Vermeulen, 32 Oh. St. 3d 45, 512 N.E.2d 626

(Ohio 1987). 7

Harrison v. Shrader, 569 S.W.2d 822 (Tenn. 1978). 3

Hayes v. Mercy Hosp., 557 N.E.2d 873 (Ill. 1990). 3

Hoem v. State, 756 P.2d 780 (Wyo. 1988). 14

Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983). 3

Iowa Department of Health v. VanWyk, 320 N.W.2d 599, 605 (Iowa

1982). 22

Jacobson v,. Massachusetts, 197 U.S. 11 (1905). 28

James v. Salem Hosp., 762 P.2d 303 (Ore App. 1988) 3

Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374,

404 N.E.2d 585. 3

Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251

(Kan. 1988). 11

Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (Ariz. 1984). 6,14,17

Klein v. Catalano, 386 Mass. 701 (1982).

31,33,36

Kohnke v. St. Paul Fire & Marine Ins. Co., 140 Wis. 2d 80, 410

N.W.2d 585 (Wis. App. 1987). 7

Lalli v. Lalli, 439 U.S. 259 (1978). 33

Landeros v. Flood, 17 Cal. 3d 399, 551 P.2d 389, 131 Cal. Rptr. 69

(1976). 23


8/53

Loving v. Virginia, 388 U.S. 1 (1969). 15

Lyons v. Lederle Labs, 440 N.W. 2d 769 (S.D. 1989). 7

Marbury v. Madison, 5 U.S. 137 (1803). 16

Matthews v. Lucas, 427 U.S. 495 (1976). 32

McCollum v. Sisters of Charity, 799 S.W.2d 15 (Ky. 1990). 7

McGowan v. Maryland, 366 U.S. 420 (1961). 32

Metropolitan Life Ins. Co. v. Ward, 105 S. Ct. 1676 (1985). 33

Minnesota v. Clover Leaf Creamery, 449 U.S. 456 (1981). 15

Mominee v. Scherbath, 28 Oh. St. 3d 270, 503 N.E.2d 717

(Ohio 1986). 7,39

Morrison v. Chan, 699 S.W.2d 205 (Tex. 1985). 7

Myrick v. James, 444 A.2d 987 (Me. 1992). 3

Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir. 1982). 3

Neagle v. Nelson, 685 S.W.2d 11 (Tex. App. 1985). 7

O'Keefe v. Osorios, No. 70 L-14884(Cook County Cir. Ct, Ill. July

24, 1984). 23

Pearlstein v. Malunny, 500 So. 2d 585 (Fla. App. 1986). 3

Phelan v. Hauft, 471 So. 2d 648 (Fla. App. 1985). 2

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52

(1976). 31

Plyler v. Doe, 457 U.S. 202 (1982). 28

Public Health Trust v. Knuck, 495 So. 2d 834(Fla. App. 1986) 3

Pruneyard Shopping Center v. Robins 447 U.S. 74 (1980).19

Rascoe v. Anabtawi, 730 S.W.2d 460 (Tex. App. 1987). 7

Reese v. Rankin Fite Mem. Hosp., 403 So. 2d 158


9/53

(Ala. 1981). 2

Roberts v. Durham County Hosp., 289 S.E.2d 875

(N.C. App. 1982). 3

Robison v. Wichal, No. 37607

(San Luis Obispo Co. Super. Ct. 1972). 23

Roe v. Wade, 410 U.S. 113 (1973). 32

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1

(1972). 14,15

Sax v. Votteler, 648 S.W.661 (Tex. 1983). 7

Shapiro v. Thompson, 394 U.S. 618 (1967). 15

Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984). 7

Shields v. Buckholz, 515 So. 2d 1379 (Fla. App. 1987). 3

Shwann v. Riverside Methodist Hosp., 6 Oh. St. 3d 300, 452 N.E.2d

1337 (1983). 7

Simpson v. Fuller, 281 Ark. 471, 665 S.W. 2d 269

(1984). 2

Smith v. Smith, 354 S.E.2d 36 (S.C. 1987). 3

Sorenson v. Sorensen, 339 N.E.2d 907 (1975). 19

Stein v. Katz, 567 A.2d 1183 (Conn. 1989). 2

Stephens v. Snyder Clinic Assn., 230 Kan. 115, 631 P.2d 222

(1981). 3

Strahler v. St. Luke's Hosp., 706 S.W. 2d 7 (Mo. 1986). 7

Thomas v. Niemann, 397 So. 2d 90 (Ala. 1981). 2

Tindol v. Boston Housing Authority, 396 Mass. 515 (1986). 25,37

Torres v. County of Los Angeles, 257 Cal. Rptr. 211

(App. 1989). 6

Tsai v. Wells, 725 S.W.2d 271 (Tex. App. 1986). 7


10/53

Tucker v. Nichols, 431 So. 2d 1263 (Ala. 1983). 2

United States Dept. of Agriculture v. Moreno, 413 U.S. 528

(1973). 35

Vealey v. Clegg, 579 P.2d 919 (Utah 1978). 3

Whalen v. Roe, 429 U.S. 589, 604 (1977). 22

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952). 12

Young v. Haines, 41 Cal. 3d 883 (1986). 20

YWCA v. Kugler, 342 F. Supp. 1048, 1066 (D.N.J. 1972). 22

Waggoner v. Gibson, 647 F. Supp. 1102 (ND Tex. 1986). 13

Zablocki v. Redhail, 434 U.S. 374, 388 (1978). 31

CONSTITUTIONS, STATUTES AND RULES

Education for All Handicapped Children Act of 1975 codified at 20

U.S.C.A. sec. 1400(b)(4)). 22

M.G.L. c. 231 sec. 60D. passim

M.G.L. c. 119 sec. 51A. 23

M.G.L. c. 112 sec. 12F. 27

M.G.L. c. 112 sec. 12E. 27

M.G.L. c. 123 sec. 10. 27

M.G.L. c. 112 sec. 12S. 28

110 CMR 11.00. 28

Fla. Stat. sec. 95.031(2). 2

Vt. Stat. Ann. tit. 12 sec. 518. 2

U.S. CONST. amend. XIV sec. 1. passim


11/53

Massachusetts Declaration of Rights passim

Magna Charta 16

OTHER AUTHORITIES

16A Am. JUR.2d Constitutional Law sec. 376 (1979). 31

Adler, Stalking the Rogue Physician: An Analysis of the Health

Care Quality Improvement Act, 28 Am. Bus. L. J. 683,

Winter 1991. 5

American Bar Association, Center on Children and the Law, Lawyers

for Children (1991). 23

Bopp, Protection of Disabled Newborns: Are There Constitutional

Limitations, Issues in Law and Medicine, Vol., 1, No. 3, National

Legal Center for the Medically Dependent and Disabled, Inc.

(November 1985). 21

Bopp and Balch, The Child Abuse Amendments of 1984 and Their

Implementing Regulations: A Summary, 1 Issues in Law and Medicine

91, 102 (1985). 22

Breaden, Perspectives in Medical Discipline, 76 Fed'n Bull. 42, 48

(February 1989). 5

Brennan, State Constitutions and the Protection of Individual

Rights, 90 Harv. L. Rev. 489 (1977). 11

Collins, Reliance on State Constitutions, in DEVELOPMENTS IN

STATE CONSTITUTIONAL LAW (1985). 11

Comment, "Defective Newborns: Inconsistent Application of Legal

Principles Emphasized by the Infant Doe Case," 14 Texas Tech. L.

Rev. 569, (1983). 18

Commonwealth of Massachusetts, Interim Report of the Special

Commission Established to Make an Investigation and Study of

Medical Professional Liability Insurance and the Nature and

Consequences of Medical Malpractice, under Section 12 of Chapter

362 of the Acts of 1975 (Jan. 8, 1976). 8

David Margolick, "Child Deaths, a Test for Christian Science," New


12/53

York Times, Aug. 6, 1990. 28

Federalist Papers, No. 78 (Mod. Lib. Ed. 1941). 10

Feldman and Abney, The Double Security of Federalism: ProtectingIndividual Liberty Under the Arizona Constitution, 20 Ariz. St. L.

J. 115 (1989). 11

United States General Accounting Office, Medical Malpractice:

Characteristics of Claims Closed in 1984

(April 1987). 39

Hussey and Klein, A Randomized Control of Vitamin A in Children,

323 New England Journal of Medicine

160-164 (1990). 28

K. Sack, "Thousands of Medical Errors but Few Lawsuits," Study

Shows, N.Y. Times, Jan. 29, 1990 at A15, col. 1. 5

Trombetta, Christopher C., Note, The Unconstitutionality of

Medical Malpractice Statutes of Repose: Judicial Conscience v.

Legislative Will, 34 VILL L REV 297 (1989). 2,3

Kirk B. Johnson, Beyond Tort Reform, 257 JAMA 827 (Feb. 13, 1987).

6

Learner, Restrictive Medical Malpractice Compensation Schemes: A

Constitutional "Quid Pro Quo" Analysis to Safeguard IndividualLiberties, 18 HARV. J. ON LEGIS. 143 (1981). 4,8 ,33

Linde, First Things First: Rediscovering the States' Bill of

Rights, 9 U. Balt. L. Rev. 379 (1980). 11

Louise Armstrong, And They Call it Help: The Psychiatric Policing

of America's Children (Addison-Wesley 1993). 29

Michael de Courcy Hinds, "Judge Orders Measles Shots in

Philadelphia" New York Times, Mar. 6, 1991. 28

Mnookin and Weisberg, Child, Family and State, Third Ed. (Little

Brown and Co. 1995). 28

Mosk, The State Courts in American Law: The Third Century 216

(1976). 11


13/53

National Legal Center for the Medically Dependant and Disabled,

The Medical Treatment Rights of Children with Disabilities, A

Litigation Manual, (1987). 24

National Commission for the Protection of Human Subjects ofBiomedical and Behavioral Research Report

and Recommendations, Research Involving Children 12-13 (U.S. Dept.

HEW 1977). 28

New York Times, "Boston Jury Convicts 2 Christian Scientists in

Death of Son," New York Times, July 5, 1990 28

Note, Surveying Massachusetts' Child Abuse Laws: The Best

Protection for Children? 26 Suffolk Law Review 107

(Spring 1992). 21

Note, The Unconstitutionality of Medical Malpractice Statutes of

Repose: Judicial Conscience Versus Legislative Will, 34 Villanova

Law Review 397, 398 nn.4, 5. (1989). 2,3

Note, 'This May Sting a Little'- A Solution to the Medical

Malpractice Crisis Requires Insurers, Doctors, Patients and

Lawyers to Take Their Medicine, 26 Suffolk University Law Review

147 (Spring 1992). 5,6

Nowak, Rotunda & Young, CONSTITUTIONAL LAW 457-61 (1983).

31

Redish, Legislative Response to the Medical Malpractice Insurance

Crisis: Constitutional Implications,

55 Tex L. Rev. (1977). 4

Schuman, The Right to a Remedy, 65 Temple L. Rev. 1197.

17

Sidney Wolfe, Reducing Malpractice: Tort Reform is Not the Key,

103 PUB. HEALTH REP. 338 (July-Aug. 1988). 5

Troyen A. Brennan et al., Incidence of Adverse Events andNegligence in Hospitalized Patients, 324 New Eng. J. Med. 370

(Feb. 7, 1991). 8

Turkington, Constitutional Limitations on Tort Reform: Have the

State Courts Placed Insurmountable Obstacles in the Path of

Legislative Responses to the Perceived Liability Insurance Crisis?

32 VILL L. REV. 1299 (1987). 8


14/53

U.S. House of Representatives, Select Committee on Children, Youth

and Families, The Profits of Misery: How Impatient Psychiatric

Treatment Bilks the System and Betrays Our Trust (Washington D.C.,

U.S. Government Printing Office). 29

U.S. Department of Health and Human Services, Study Findings:

Study of National Incidence and Prevalence of

Child Abuse and Neglect: 1988

(Washington D.C.: U.S. Government Printing Office 1988).

22

U.S. Department of Health and Human Services, National Center on

Child Abuse and Neglect, A Coordinated Response to Child Abuse and

Neglect: A Basic Manual. 22

Vincent Fontana, MD. Somewhere A Child is Crying. 25

von Struensee, V.S., Perspectives on Child Maltreatment: Scope,

Causes, Effects and Prevention (August 1996). 25


15/53

1

IDENTITY AND INTEREST OF AMICI

Children's Watch respectfully submits this brief as amici curiae in support of

appellants in this case,as we did for the child in Plummer v. Gillieson, 44 Mass. App. Ct.

578 (1998). . A motion for leave to file this brief has been filed with this court.

Children's Watch is a non-profit, Massachusetts, corporation which monitors

children's rights and seeks to foster regard for children, their legal rights, their human

rights, and their status as dignified persons. Lest children find their rights have been

neglected or bargained away, Children's Watch has undertaken to serve as their voice in

courts.

Children's Watch is committed to monitoring the upholding of children's rights.

Through advocacy of children's rights, we shall enhance the awareness of the public of

the rights of children and national and international compliance with children's human

rights.

The ultimate goal of Children's Watch is to improve the quality of children's status

and to shelter and care for children's legal and human rights.

Amici are deeply concerned by the issue in this case.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

1. As applied herein by the Superior Court, should M.G.L. c.231 Section 60D, the medical

malpractice statute of repose provision as well as the statute of limitations provision on

the medical malpractice statute of limitations for child victims of medical malpractice be

stricken as violative of the United States Constitution and the Massachusetts Declaration


16/53

2

of Rights?

2. Did the Court err in allowing defendants Summary Judgment?

STATEMENT OF FACTS THE NATURE OF THE ALLEGED MEDICAL

MALPRACTICE INSURANCE CRISIS

Amici adopts the plaintiff childs statement of the facts of this case and adds that

concern that delayed discovery rules may encourage plaintiffs to pursue stale claims, a

perceived insurance crisis and a concomitant desire for finality and certainty, prompted

state legislatures to pass legislation shortening statute of limitations for minors with

medical malpractice claims, as well as enacting statutes of repose imposing an outer limit

on the time available for a plaintiff to discover his or her injury and to file suit. 1 These

"statute of repose" have been enacted most frequently for medical malpractice and

product liability suits. Statutes of repose commonly begin at an arbitrary date and bar any

claims brought more than a fixed period after that date.2

Statutes of repose initially survived constitutional challenges,3 but the trend has

1 See Anthony v. Koppers Co., 284 Pa. Super. 81, 425 A.2d 428 (1980) (coke oven

emissions resulting in "creeping" disease) rev'd. 496 Pa. 119, 436 A.2d 181 (1981).

2 See, e.g., Fla. Stat. sec. 95.031(2); See also Vt. Stat. Ann. tit. 12 sec. 518 (Claim for latent

injuries may be brought no more than twenty years after last exposure).

3 See, e.g., Note, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial

Conscience Versus Legislative Will, 34 Villanova Law Review 397, 398 nn.4, 5. (1989).Medical malpractice statutes of repose have been upheld in the following courts: Alabama:Reese v. Rankin Fite Mem. Hosp., 403 So. 2d 158 (Ala. 1981) (statute of limitations andstatute of repose do not violate equal protection); Thomas v. Niemann, 397 So. 2d 90 (Ala.1981)(short statute of limitations and statute of repose for medical malpractice actions donot violate single-subject requirement); Tucker v. Nichols, 431 So. 2d 1263 (Ala. 1983)(2-yearmedical malpractice statute of repose does not violate open courts provision because statutecontains savings clause for after-discovered injury); Bolin Horn v. Citizens Hosp., 425 So. 2d1065 (Ala. 1983)(medical malpractice statute of limitations does not violate equalprotection); Arkansas: Gay v. Rabon, 280 Ark. 5, 662 S.W. 2d 836 (1983)(upholdsrequirements of 60-day notice to health care defendant prior to filing suit); Accord Simpson v.


17/53

3

been to find them unconstitutional.4 The trend toward finding medical malpractice

statutes of repose unconstitutional indicates judicial concern with the harsh results that

such statutes create and with the fact that the enactment of statutes of repose was in

response to what is now termed as a "perceived" as opposed to a bona fide medical

malpractice insurance crisis of the 1970's.

Fuller, 281 Ark. 471, 665 S.W. 2d 269(1984); Dawson v. Gerritsen, 720 S.W.2d 714 (Ark.1986). Connecticut: Ecker v. Town of West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987)(upholds 3-year statute of repose for wrongful death actions); Stein v. Katz, 567 A.2d 1183(Conn. 1989)(upholds statute of repose for dental malpractice); Delaware: Dunn v. St. FrancisHosp., 401 A.2d 77 (Del. 1979)(medical malpractice two-year statute of limitations does notviolate open courts provision); Cole v. League for Planned Parenthood, 530 A.2d 1119(Del.1988); Florida: Phelan v. Hauft, 471 So. 2d 648 (Fla. App. 1985(upholds statute of repose);Pearlstein v. Malunny, 500 So. 2d 585 (Fla. App. 1986)(upholds prefiling notice requirement);Public Health Trust v. Knuck, 495 So. 2d 834 (Fla. App. 1986)(notice requirement upheld);Carr v. Broward County, 505 So. 2d 568 (Fla. App. 1987)(upholds 7-year statute of repose inmedical malpractice cases, even though no alternative remedy provided, on grounds of"overpowering public necessity" (as demonstrated by rising insurance rates) and noreasonable alternative to cure insurance crisis, certifies question to Supreme Court); Shieldsv. Buckholz, 515 So. 2d 1379 (Fla. App. 1987) (upholds four-year statute of repose in MedicalMalpractice Act as response to insurance crisis); Carr v. Broward County, 541 So. 2d 92 (Fla.1989)(Fla. 7-year statute of repose for medical malpractice does not violate access to courtsguarantee); Idaho: Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983)(2-year medicalmalpractice statute of repose does not violate equal protection or due process);Illinois:Anderson v. Wagner, 79 Ill. 2d 295, 37 Ill. Dec. 558, 402 N.E.2d 560 (1980) (shorter statute oflimitations for medical malpractice actions does not violate due process or guarantee againstspecial legislation; Hayes v. Mercy Hosp., 557 N.E.2d 873 (Ill. 1990)(Four year statute ofrepose for medical malpractice upheld); Indiana: Johnson v. St. Vincent Hospital, Inc., 273Ind. 374, 404 N.E.2d 585 (Ind. 1980)(2-year statute of limitations upheld); Douglas v. Hugh A.Stallings, 870 F.2d 1242 (7th Cir. 1989)(Indiana medical malpractice statute of limitationsdoes not violate equal protection of due process); Iowa: Fitz v. Dolyak, 712 F.2d 330 (8th Cir.1983)(6-year statute of repose for medical malpractice upheld); Kansas: Stephens v. SnyderClinic Assn., 230 Kan. 115, 631 P.2d 222 (1981) (Statute of repose for medical cases does notviolate equal protection); Louisiana: Crier v. Whitecloud, 496 So. 2d 305 (La. 1986) (three-year statute of limitations for medical cases does not violate due process, equal protection oraccess to courts. Maine: Myrick v. James, 444 A.2d 987 (Me. 1992)(2-year statute oflimitations in medical malpractice upheld by construing act to include a discovery rule).Minnesota: Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir. 1982)(malpractice 2-year statute ofrepose does not violate federal due process or equal protection). Nebraska: Colton v. Dewey,212 Neb. 126, 321 N.W.2d 913 (1982) (malpractice statute does not violate federal or stateconstitutions). New Mexico:Armijo v. Tandyish, 98 N.M. 181, 646 P.2d 1245 (Ct. App. 1981)(medical malpractice statute of repose does not violate federal equal protection or dueprocess).North Carolina: Roberts v. Durham County Hosp., 289 S.E.2d 875 (N.C. App. 1982 (10-yearmedical malpractice statute of repose upheld). Oregon: James v. Salem Hosp., 762 P.2d 303


18/53

4

In the 1970's and 1980's many state legislatures, including Massachusetts,

enacted medical malpractice shortened statute of limitations for children and medical

malpractice statutes of repose in response to the alleged medical malpractice insurance

crisis of the 1970's. The legislative purpose of these statutes was to control the "long tail"

effect created by the adoption of the discovery rule.5 Insurance corporations claimed that

exorbitant medical malpractice liability insurance premiums were required to cover current

and possible future medical malpractice claims against health care practitioners.6 Medical

malpractice insurance premiums skyrocketed in the 1970s, and insurance and health care

lobbyists then pressured state legislatures to enact legislation abrogating or limiting the

use of the discovery rule, which they incorrectly purported was the cause of the crisis, so

as to reduce medical malpractice insurance premiums.7 This gave a special benefit to a

(Ore App. 1988)(medical malpractice statute of repose does not violate equal protection).South Carolina: Smith v. Smith, 354 S.E.2d 36 (S.C. 1987)(three-year statute of limitationsand six-year statute of repose do not violate equal protection). Tennessee: Harrison v.Shrader, 569 S.W.2d 822 (Tenn. 1978) (medical malpractice 3-year statute of repose upheld).Utah: Vealey v. Clegg, 579 P.2d 919 (Utah 1978)(medical malpractice statute of reposeupheld).

Washington: Duffy v. King Chiropractic Clinic, 17 Wash. App. 693, 565 P.2d 435 (1977)(medical malpractice statute of repose upheld).

4 See, e.g., Note, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial

Conscience Versus Legislative Will, 34 Villanova Law Review 397, 398 nn.4,5. (1989).

5 It was asserted that "[t]he rate determining process is dependent upon knowing with

some degree of certainty the total potential losses for a policy year, and any extension of thestatutory period makes rate-setting that much more difficult" Redish, Legislative Response tothe Medical Malpractice Insurance Crisis: Constitutional Implications, 55 TEX. L. REV. 759, 765(1977). Consequently, the longer the relevant period during which a claim can arise, thelonger the period of risk, or long tail extends for the insurance company. Id.

6 Id. at 761, 765.

7 Learner, Restrictive Medical malpractice Compensation Schemes: A Constitutional "Quid

Pro Quo" Analysis to Safeguard Individual Liberties, 18 HARV. J. ON LEGIS. 143, 144 (1981);See also McKay, Rethinking the Tort Liability System: A Report from the ABA Commission, 32VILL. L. REV. 1219, 1220 (1987).


19/53

5

group, insurance corporations and medical professionals, at the expense of injured

individuals, including children. State legislatures enacting statutes of repose indicated

that they passed the statutes to ensure adequate health care would be available to the

general public.8

Both the validity of the medical malpractice insurance crisis as well as the

effectiveness of statutes of repose enacted in response to it have been disputed. 9 With

respect to insurance premiums, pricing and reserving practices it is not medical

malpractice claims, but rather cyclical "boom and bust" periods unrelated to liberalizing

tort laws, that drive prices. The increase in claims was never large enough to be

represented truthfully as "skyrocketing".10 Nor, despite an increase in the size of

malpractice awards, did the increase in the size of awards "explode". Aside from the

jumps in premiums due to the business cycle, some account for the enormous increases

in malpractice insurance rates may simply have been unjustified "overreserving" by

insurers.11

8 See American Bank & Trust Co. v. Community Hosp., 36 Cal.3d 359, 371, 683 P.2d 670,

677-78, 204 Cal. Rptr. 671, 678-79 (1984).

9 Note supra note 3 at 406; See also, Adler, Stalking the Rogue Physician: An Analysis of

the Health Care Quality Improvement Act, 28 Am. Bus. L. J. 683, Winter 1991; See alsoBreaden, Perspectives in Medical Discipline, 76 FED"N BULL. 42, 48 (February 1989)(Bulletinof the Federation of State Medical Boards of the United States, Inc.).

10 According to Adler, for every ten malpractice incidents, only one claim is filed, and only

one in twenty-five claims receives compensation. Only one in seven patients files a claimeven for major injuries resulting from malpractice. A study of New York hospitals concludedthat thousands of deaths and tens of thousands of injuries result from medical malpracticeyearly, but relatively few victims make claims. Adler supra note 9; See also K. Sack,"Thousands of Medical Errors, but Few Lawsuits, Study Shows", N.Y. Times, Jan. 29, 1990 atA15, col.1.

11 Id.


20/53

6

The tort system is blamed but not truly responsible for the medical malpractice

crisis. The effect on the crisis of insurance pricing practices and incompetent doctors

cannot be discounted.12

The malpractice system creates insufficient protections for quality care and further

patient public health protections are needed. These facts are not cited to make the

impression that doctors are incompetent and untrustworthy, it is conceded that doctors'

work is risk-laden and even minimal mistakes can have devastating consequences.

Certainly, outstanding doctors get sued for medical malpractice too. Nonetheless,

incompetent physicians are a serious problem,13 and the patient and child patient, who

stand the most to lose, from medical malpractice, are entitled to protection and remedy.

Many courts, realizing that the medical malpractice insurance crisis was not bona

fide and was in fact illusory,14 and that legislation of statutes of repose was inappropriate,

12 In response to the rising costs of malpractice in the early 1970s, state legislatures

reformed tort law and insurance regulations and also sought to promote high quality care.Note, This May Sting a Little-A Solution to the Medical Malpractice Crisis Requires Insurers,Doctors, Patients, and Lawyers to Take Their Medicine, 26 Suffolk University Law Review 147

(Spring 1992). Statistics on the causes and consequences of the medical malpractice crisisare contradictory. Compare, Sidney Wolfe, Reducing Malpractice: Tort Reform is Not the Key,103 PUB. HEALTH REP. 338, 338 (July-Aug. 1988) with Kirk B. Johnson, Beyond Tort Reform,257 JAMA 827, 827 (Feb. 13, 1987). However, the effect of negligence cannot be discounted.See Troyen A. Brennan et al., Incidence of Adverse Events and Negligence in HospitalizedPatients, 324 NEW ENG. J. MED. 370, 371 (Feb, 7, 1991). See also Stephen Zucherman et al.,Information on Malpractice: A Review of Empirical Research on Major Policy Issues, 49 LAW &CONTEMP. PROBS. 85, 91 (Spring 1986). In 1991, the 102nd Congress of the United Statesconsidered the problems of medical malpractice insurance and litigation. See, This May Stinga Little-A Solution to the Medical Malpractice Crisis Requires Insurers, Doctors, Patients, andLawyers to Take Their Medicine, 26 Suffolk University Law Review 147, 161 n. 92 andaccompanying text (Spring 1992).

13 Breaden, Concentrating on the Problem Physician: Perspectives in Medical Discipline, 76FED'N Bull. 68, 76 (March 1989) (Bulletin of the Federation of State Medical Boards of theUnited States )(citing a report that up to 15 percent of physicians at some point in theircareers will become impaired, largely due to drugs and alcohol).

14 Turkington, Constitutional Limitations on Tort Reform: Have the State Courts Placed


21/53

7

have held them to be unconstitutional.15

THE LEGISLATIVE HISTORY SURROUNDING THE MASSACHUSETTS MEDICAL

MALPRACTICE STATUTE OF REPOSE

Insurmountable Obstacles in the Path of Legislative Responses to the Perceived LiabilityInsurance Crisis? 32 VILL. L. REV. 1299, (1987).

15 Note supra note 3 at 406 n.42 and cases cited. Medical malpractice statutes of repose

held to be unconstitutional by courts include: Arizona: Kenyon v. Hammer, 142 Ariz. 69, 688P.2d 961 (Ariz. 1984) (abolition of discovery rule violates fundamental right to recover forinjuries; invalid under strict scrutiny); Anson v. American Motors Corp., 747 P.2d 581 (Ariz.App. 1987) (two-year statute of limitations for wrongful death would be unconstitutionalwithout discovery rule); Accord Davis v. Dow Chemical Corp., 819 F.2d 231 (9th Cir. 1987).California: Torres v. County of Los Angeles, 257 Cal. Rptr. 211 (App. 1989) (medicalmalpractice statute of limitations for minors violates equal protection clause in absence ofdiscovery rule); Colorado: Austin v. Litvak, 682 P.2d 41 (Colo. 1984) (three-year statute ofrepose in medical malpractice actions would be unconstitutional but for judicially engraftedexception for cases where injury was unknown due to negligent misdiagnosis; plurality);Georgia: Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984) (2-year statute of reposeviolates equal protection as applied to injury occurring over 2 years after negligent act);Kentucky: McCollum v. Sisters of Charity, 799 S.W.2d 15 (Ky. 1990) (medical malpracticestatute of repose of five years from negligent act violates state constitutional open courtguarantee); Missouri: Strahler v. St. Luke's Hosp., 706 S.W. 2d 7 (Mo. 1986)(statute oflimitations requiring minor to sue before age of majority violates state guarantees of accessto courts); New Hampshire: Carson v. Maurer, 424 A.2d 825 (N.H. 1980) (abolition ofdiscovery rule and 60-day prefiling notice requirement violate state equal protectionguarantee); Coffey v. Bresnahan, 506 A.2d 310 (N.H. 1986)(special 2-year statute oflimitations for medical malpractice actions violates state equal protection); Ohio: Shwann v.Riverside Methodist Hosp., 6 Oh. St. 3d 300, 452 N.E.2d 1337 (1983) (medical malpracticestatute of limitations violates state equal protection); Mominee v. Scherbath, 28 Oh. St. 3d270, 503 N.E.2d 717 (Ohio 1986)(statute requiring a medical malpractice plaintiff to bringaction within 1 year of accrual and no more than four years of incident is unconstitutional asapplied to minors); Hardy v. Vermeulen, 32 Oh. St. 3d 45, 512 N.E.2d 626 (Ohio 1987) (fouryear statute of repose as applied to plaintiff who could not have discovered injury within timelimit violates state guarantee of right to a remedy); Gaines v. Preterm-Cleveland, 514 N.E.2d709 (Ohio 1987) (statute of repose unconstitutional as applied to plaintiff who discoversinjury after three years, but less than four, violates guarantee of open courts and dueprocess); South Dakota: Lyons v. Lederle Labs, 440 N.W. 2d 769 (S.D. 1989)(shorter statuteof limitations for minors with medical malpractice claims violates equal protection of stateand federal constitution); Texas: Sax v. Votteler, 648 S.W.661 (Tex. 1983)(shortened statuteof limitations for minors unconstitutional, violated right to remedy because statute abolishedminor's right to bring a well-established cause of action before he knew of injury or before it


22/53

8

The legislative history of MGL c. 231 Sec. 60 D indicates that it was spurned on by

the alleged medical malpractice crisis. The bill became effective on January 1, 1976. Yet,

on January 8, 1976, the legislature published a report concluding that there is no reliable

data on which to make the difficult decisions concerning cost and availability of medical

malpractice insurance.16 Thus, the legislature had no rational basis to support the medical

malpractice shortened statute of limitations for children. In 1986 H 5700 passed in the

Massachusetts Legislature, adding the medical malpractice statute of repose. After initial

proposals of five years, the legislature arbitrarily settled on a seven year statute of

repose. Thus, the legislature had no rational basis to support the seven year medical

malpractice statute of repose.

SUMMARY OF ARGUMENT

Amici are cognizant of the present state of the law pertaining to the Massachusetts

medical malpractice shortened statute of limitations for children and the medical

could have reasonably been discovered); Neagle v. Nelson, 685 S.W.2d 11 (Tex. App. 1985)(two-year statute of limitations for malpractice claims unconstitutional denial of access to

courts as applied to hidden injury); Morrison v. Chan, 699 S.W.2d 205 (Tex. 1985)(reconciling decisions, court states that statute violates open courts guarantee as appliedwhere plaintiff had no reasonable opportunity to discover injury within limitations period);

Tsai v. Wells, 725 S.W.2d 271 (Tex. App. 1986) (though two-year statute of repose abolishesdiscovery rule, right of access to courts requires court to give reasonable period to discoverinjury); DeLuna v. Rizkallah, 754 S.W.2d 366 (Tex. App. 1988)(Under Morrison, plaintiff isentitled to benefit of discovery rule); Rascoe v. Anabtawi, 730 S.W.2d 460 (Tex. App. 1987)(2-year statute of limitations does not violate open courts unless plaintiff can show he could nothave discovered injury within 2 years);Wisconsin: Kohnke v. St. Paul Fire & Marine Ins. Co., 140 Wis. 2d 80, 410 N.W.2d 585 (Wis.App. 1987)(medical malpractice 5-year statute of repose violates right-to-remedy guarantee)aff'd on other grounds, 424 N.W. 2d 191 (Wis. 1988)(court applies discovery rule and holdsplaintiff's action timely, and does not reach issue of constitutionality of statute).

16 Commonwealth of Massachusetts, INTERIM REPORT OF THE SPECIAL COMMISSION

ESTABLISHED TO MAKE AN INVESTIGATION AND STUDY OF MEDICAL PROFESSIONAL LIABILITYINSURANCE AND THE NATURE AND CONSEQUENCES OF MEDICAL MALPRACTICE, UNDERSECTION 12 OF CHAPTER 362 OF THE ACTS OF 1975, (January 8, 1976).


23/53

9

malpractice statute of repose, but respectfully suggest that the issues and facts herein

distinguish this matter from earlier cases decided by this court, on statutes of repose in

other contexts, in light of the facts and in light of the nature and identity of the child party

on whose behalf we advance our present argument. The nature of medical malpractice

injuries, often latent, and the fact that children cannot always rely on parents to assert

their claims, the fact that the medical malpractice insurance crisis was illusory, the facts

and situations of the parties, would call for an application of M.G.L. c. 231 Section 60D in

a manner violative of both the equal protection and due process provisions of the state

constitution, the 14th Amendment of the United States Constitution and Part 1 Article XI of

the Massachusetts Declaration of Rights.

While a shortened statute of limitations for children and a medical malpractice

statute of repose such as MGL c. 231 sec. 60D may be generally founded upon a valid

state interest, this arbitrary distinction between medical malpractice tort victims and other

sorts of tort victims does not further any state interest and the statute is therefore violative

of the concepts of equal protection.

Numerous jurisdictions have determined similar statutes to be unconstitutional.

ARGUMENT

I. THIS COURT SHOULD TAKE CLOSE, INDEPENDENT SCRUTINY OF

LEGISLATION LIMITING THE RIGHT OF MEDICAL MALPRACTICE VICTIMS TO

REMEDY

A. It is the Constitutional Role of the Judiciary to Declare Invalid Acts of the Legislature


24/53

10

Which Exceed the Authority Granted by the People of the Commonwealth of

Massachusetts

At issue before this Court is the constitutionality of the medical malpractice statute

of repose, M.G.L. c. 231 Sec. 60D. It provides that:

Notwithstanding the provisions of section seven of chapter two hundred and sixty,any claim by a minor against a health care provider stemming from professionalservices or health care rendered, whether in contract or tort, based on an allegedact, omission or neglect shall be commenced within three years from the date thecause of action accrues, except that a minor under the full age of six years shallhave until his ninth birthday in which the action may be commenced, but in noevent shall any such action be commenced more than seven years afteroccurrence of the act or omission which is the alleged cause of the injury upon

which such action is based except where the action is based upon the leaving of aforeign object in the body.

Amici urge this Court to give careful consideration to the constitutional issues at

stake for Massachusetts victims of negligent medical treatment. Amici submit that this

enactment deprives Massachusetts citizens of constitutional guarantees.

The power which the people of Massachusetts have granted the General

Assembly is broad, but not unbounded. The people have reserved to themselves certain

rights which even the legislature may not infringe. Among these are the right to a remedy.

Art. 11, and the right to equal protection and due process. It is the role of the judiciary to

preserve those rights by invalidating any statute that exceeds the legislature's

constitutional authority. Alexander Hamilton described the judicial check on legislative

power as vital to freedom:

The complete independence of the courts of justice is peculiarly essential ina limited constitution. By a limited constitution I understand one whichcontains certain specified exceptions to the legislative authority. Limitationsof this kind can be reserved and practiced no other way than through the


25/53

11

medium of courts of justice whose duty it must be to declare all acts contraryto the manifest tender of the constitution void. Without this, all thereservations of particular rights or privileges would amount to nothing.

The Federalist Papers, No. 78 (Mod. Lib. Ed. 1941).

In its role as final arbiter of the constitutionality of laws, the court is "not made the

critic of the legislature, but rather, the guardian of the constitution." Kansas Malpractice

Victims Coalition v. Bell,757 P2d 251, 256 (Kan. 1988).

The Kansas court also points out that the guarantees of rights in the state

constitution are no less vital than those found in the federal constitution. They are more

than "glittering generalities"; they are binding limits on the authority of government "and

no act of the legislature can be upheld which conflicts with their provisions." 757 P.2d at

257.

Indeed, the past two decades have seen a rejuvenation of state constitutional law

as primary guardian of individual liberties. See Brennan, State Constitutions and the

Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); See also, Linde, First Things

First: Rediscovering the States' Bill of Rights, 9 U. Balt. L. Rev. 379 (1980); Mosk, The

State Courts in American Law: The Third Century 216 (1976); Feldman and Abney, The

Double Security of Federalism: Protecting Individual Liberty Under the Arizona

Constitution, 20 Ariz. St. L. J. 115 (1989). From 1970 to 1985, over 250 state court

decisions afforded citizens greater rights under state constitutions than under the U.S.

Constitution. Collins, Reliance on State Constitutions, in Developments in State

Constitutional Law 2 (1985).

B. The Circumstances Surrounding the Enactment of the Statute Undermine


26/53

12

Presumption of its Constitutionality.

It is said that statutes come to the court clothed in a presumption of

constitutionality and that the acts of the legislature are entitled to great deference. This

principle does not exist in a vacuum, however. It is grounded in a very pragmatic

recognition that legislative bodies are better equipped than courts to conduct a broad

investigation into matters of public concern and accommodate the views of those affected.

As the U.S. Supreme Court explained, "the Constitution presumes that even improvident

decisions will eventually be rectified by the democratic processes." City of Cleburne v.

Cleburne Living Center, 473 U.S. 432, 440 (1985). Amici suggest, however, that where

the legislation represents a deprivation of the rights of a politically powerless group, or

where the legislature may have been misled as to the factual basis for the statute, the

usual democratic processes fail. Under such circumstances, broad judicial deference to

the judgement of the legislature is unwarranted. Meaningful judicial review requires an

independent assessment of the means and ends of the legislation. The fact that a special

interest has succeeded in winning beneficial treatment from the legislature is not itself

improper. However, as a respected commentator urges, when intensive lobbying results

in a legislative benefit at the "expense of a powerless minority, the court should view the

enactment with greater scrutiny." Learner, Restrictive Medical Malpractice Compensation

Schemes: A Constitutional "Quid Pro Quo" Analysis to Safeguard Individual Liberties, 18

Harv. J. on Legis. 143, 189 (1981). See Farley v. Engelken, 740 P.2d 1058 (Kan. 1985).

1. The Proponents of the Statute May Have Misled the Legislature as to the Nature of


27/53

13

the Insurance Crisis.

It is fair to state that the members of the Legislature felt that limiting the rights of

victims was necessary medicine to deal with the "medical malpractice crisis." Still, it must

be recognized that the existence of a crisis does not itself validate an improper exercise of

power. "Constitutional protections exist for litigants regardless of market conditions for

insurance companies and the medical industry." Waggoner v. Gibson, 647 F. Supp. 1102,

1107 (N.D. Tex. 1986); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589

(1952). What is more disturbing, however, is the clear evidence that the "crisis" was

manufactured by the liability insurance industry, the primary beneficiary of the legislation.

Amici do not insist that this Court reexamine the alleged "crisis". It is sufficient that

this Court recognize that the legislation before it was the product of an intense lobbying

campaign to the legislature, which had a lack of crucial information regarding insurance

premium increases. These factors distorted the legislative process and undermine the

very reason why courts traditionally accord deference to the judgement of the legislature.

The Wyoming Supreme Court, striking down that state's malpractice reform statute,

stated, that "we find the following language to be convincing:

Most state courts give considerable deference to the state legislature'sspecific declarations in statutes that such a crisis does exist and that thesubstantive portions of the statute are intended to alleviate that crisis. Abetter approach for those courts that have yet to decide the issue would be,however, to take a more skeptical attitude toward the evidence presentedby the medical profession and the insurance industry....Proper scrutiny ofthe constitutional validity of state legislation demands more than aperfunctory deferral to the legislature's conclusions regarding the existenceof a health care crisis in a particular state. Comment, ConstitutionalChallenges to Medical Malpractice Review Boards, 46 Tenn. L. Rev. 607,


28/53

14

645 (1978).

Hoem v. State, 756 P.2d 780, 784 (Wyo. 1988).

C. Limits on the Right to Remedy and Discrimination and Limits on the Rights ofChildren Warrant Strict or Heightened Scrutiny Under

Equal Protection.

The Massachusetts Declaration of Rights guarantees the citizens of

Massachusetts equal protection of the laws.

The U.S. Supreme Court has long recognized that, while classifications in mere

economic regulations are valid if rational, statutes which discriminate against protected

minorities or infringe upon fundamental rights are subject to strict judicial scrutiny. A right

must be deemed "fundamental" for equal protection purposes, if it is "explicitly or implicitly

guaranteed by the Constitution." San Antonio Independent School Dist. v. Rodriguez, 411

U.S. 1, 33-34 (1972).

This principle includes statutes which infringe upon those rights guaranteed by

state constitutions. Consequently, tort reforms which violate state constitutional rights are

subject to strict scrutiny. Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (Ariz. 1984);

Ernst v. Faler, 237 Kan. 125, 701 P.2d 939 (1985).

For purposes of triggering strict scrutiny, however, it is not essential to

demonstrate outright violation of explicit constitutional provisions. It is sufficient that the

statute merely interferes with those rights:

[t]he Court has applied strict scrutiny to state or federal legislation touchingupon constitutionally protected rights. Each of our prior cases involvedlegislation which "deprived", "infringed" or "interfered" with the free exerciseof some such fundamental personal right or liberty.


29/53

15

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. at 38-39.Under strict scrutiny, the State bears a "very heavy burden of justification, "

Loving v. Virginia, 388 U.S. 1, 9 (1969), to prove that the legislation is "necessary to

promote a compelling state interest." Shapiro v. Thomson, 394 U.S. 618, 638 (1967).

Amici submit that, in view of the illusory nature of the insurance "crisis" as described

above, there was no compelling state interest to be served by the statute. Moreover, since

there are many more direct and equitable methods of providing assistance to medical

providers, it was not necessary to impose the cost entirely on the victims of medical

negligence.

Even if the U.S. Constitution required only a rational basis for the statute at

issue, this Court is free to afford greater protection to the citizens of Massachusetts. As

the U.S. Supreme Court itself points out, " A state court may, of course, apply a more

stringent standard of review as a matter of state law under the State's equivalent of the

Equal Protection or Due Process Clauses." Minnesota v. Clover Leaf Creamery, 449 U.S.

456, 461 n.6 (1981).

On this basis, other courts have held that the right to recover for personal

injuries, even if not fundamental, is sufficiently important to warrant intermediate scrutiny

of statutes that infringe that right. See, e.g., Carson v. Maurer, 120 N.H. 925, 424 A.2d

825, 831 (1980); Farley v. Engelken, 740 P.2d 1058, 1064 (Kan. 1987); Arneson v.

Olson, 270 N.W.2d 125, 135 (N.D. 1978). This level of scrutiny requires that there be a

"fair and substantial relation" between the legislative classification and its objective.

Amici further submit that the statute cannot be sustained even under the

minimal rational basis test as discussed infra.


30/53

16

D. The Medical Malpractice Statute of Repose Should be Stricken as Violative of the

Right to a Remedy Guaranteed by the Massachusetts Declaration of Rights and of

Equal Protection and Due Process.

The medical malpractice statute of repose, c.231 sec.60D violates Part 1, Article XI

of the Massachusetts Declaration of Rights. The legislature cannot enact statutes which

arbitrarily eliminate remedies when there is no showing of state interest. Here we have

shown that the statute has not resulted in affordable health care for citizens and that there

was no medical malpractice insurance crisis and therefore no state interest in passing the

statute.

The right to a remedy has its origins in the Magna Charta (1215). The United

States Supreme Court emphasized that providing legal redress for harm is a principal

function of government. Marbury v. Madison, 5 U.S. 137 (1803). The court has located

that right in the due process clause of the United States Constitution. Thirty nine states

have incorporated this right into their state constitutions. The historical evidence indicates

that many of these states intended this provision as a check on state legislatures. See

Schuman, The Right to a Remedy, 65 Temple L. Rev. 1197.

Article 11 of the Massachusetts Declaration of Rights provides: "Every subject of

the commonwealth ought to find a certain remedy, by having recourse to the laws, for all

injuries or wrongs which he may receive in his person, property or character."

In Kenyon v. Hammer17, the Arizona Supreme Court held, based on its state

constitution, that the right to bring an action to remedy damages for bodily injury was a

17 142 Ariz. 69, 688 P.2d 961 (1984).


31/53

17

fundamental right18. Consequently, it applied strict scrutiny analysis and found the statute

of repose violative of equal protection since it was not necessary to promote the state's

interest in providing affordable health care 19 and instead merely lowered the cost of

medical malpractice insurance premiums.20 The court held:

[W]e believe that the state has neither a compelling nor legitimate interest inproviding economic relief to one segment of society by depriving those who havebeen wronged of access to, and remedy by, the judicial system. If such ahypothesis were once approved, any profession, business or industry experiencingdifficulty could be made the beneficiary of special legislation designed toameliorate its economic adversity by limiting access to the courts by those whomthey have damaged. Under such a system, our constitutional guarantees would begradually eroded, until this state became no more than a playground for the

privileged and influential.21

Since there is no evidence that the medical malpractice statute of repose has any

effect on the availability or affordability of health care, the medical malpractice statute of

repose must be invalidated.

A significant number of courts in other states have held that statutes of repose in

medical malpractice violate the state constitutional right to a remedy.

1. Medical Malpractice Statutes of Repose Violates the Due Process and Equal

Protection Provisions of the Massachusetts Declaration of Rights.

Medical Malpractice statutes of repose provides special legislation to benefit

medical providers and insurance companies at the expense of injured victims, including

children.

18 Id. at 83, 688 P.2d at 975.

19 Id. at 87, 688 P.2d at 979.

20 Id. at 84, 688 P.2d at 976.21 Id. at 84, 688 P.2d at 976.


32/53

18

The medical malpractice statute of repose is violative of state equal protection, due

process, and right-to-a-remedy provisions. The medical malpractice statutes of repose

does not further the legitimate interest of providing affordable health care to the general

public and is therefore unconstitutional. The rights affected afford more than a rational

basis test.

Special Legislation

In addition to violating the Massachusetts constitutional guarantee of equal

protection and right to remedy, the medical malpractice statute of repose violates the

state constitutional proscription against " special legislation." 22 The legislature has the

power to enact special or private laws addressed to a particular situation that does not

establish a rule of future conduct within a substantial degree of generality, and may

provide ad hoc benefits of some kind for an individual or a number of them. Commission

of Public Health v. Bessie M. Burke Memorial Hospital, 323 N.E.2d 309, 366 Mass. 734

(1975).

However, in depriving children of their right to remedy to benefit insurance

companies and health care providers without ensuring them the promised affordable

health care renders the legislation unconstitutional, if not immoral. Here there is a

deprivation of benefits to those less favored without a corresponding exaction from the

more favored.23 This violates the quid pro quo principle for due process and is therefore

22 See, e.g., Comment, "Defective Newborns: Inconsistent Application of Legal Principles

Emphasized by the Infant Doe Case", 14 TEXAS TECH. L. REV. 569, 581-86 (1983); See alsoCargill v. Waste Management, Inc., No 95 L 7867 (Ill. Cir. Ct. 1st Dist., May 22, 1995)(widelyrespected conservative jurist invalidated the centerpiece of Illinois tort reform statute basedon six separate and independent state constitutional arguments).

23 This violates the quid pro quo principle recognized by the Supreme Court as to the


33/53

19

unconstitutional. Duke Power v. Carolina Environmental Study Group, 438 U.S. 59

(1978); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 93-94 (1980) (Marshall, J.

concurring).

E. Children Enjoy the Same Right to Protection and to Legal Redress for Wrongs Done

them as Others Enjoy; Only the Strongest Reasons, Grounded in Public Policy, can

Justify Limitation or Abolition of these Rights. No Public Policy Reasons Exist to Justify

Depriving Children their Rights to Remedy Medical Malpractice.

Children enjoy the same right to protection and to legal redress for wrongs done

them as others enjoy; only the strongest reasons, grounded in public policy, can justify

limitation or abolition of these rights. No public policy reasons exist to justify depriving

children their rights to remedy medical malpractice. Sorensen v. Sorensen, 339 N.E.2d

907 (1975). Therefore, the shortened medical malpractice statute of limitations for

children and the medical malpractice statute of repose here, as applied to minors, cannot

survive a due process or an equal protection challenge. See Young v. Haines, 41 Cal. 3d

883, 900-01, 718 P.2d 909, 919, 226 Cal. Rptr. 547, 557 (1986). Regarding the statute's

goal of providing insurer's with greater certainty about their liability, the court had this to

say:

This court is not presented with the question whether a restricted statute oflimitations with narrow tolling provisions for all malpractice plaintiffs isrationally related to this goal. However, it is difficult to see howdiscrimination against minor malpractice plaintiffs...is rationally related to

constitutionality of limiting remedies. Just as the Worker's Compensation scheme wasdeemed constitutional because some compensation was given to replace the rights taken, sowere compensation schemes in environmental cases viewed as constitutional because analternative remedy was given in return. See Duke Power v. Carolina Environmental StudyGroup, 438 U.S. 59 (1978). See also Pruneyard Shopping Center v. Robins, 447 U.S. 74, 93(1980) (Marshall, J. concurring).


34/53

20

this or any other ascertainable legislative goal. The fact that suchdiscrimination against minors would bar some meritorious claims andthereby reduce total malpractice liability is not enough to justify it. If claimsare reduced in an arbitrary manner, the classification scheme denies equalprotection of the law. Id. at 900-01, 718 P.2d at 919, 226 Cal. Rptr. at 557.

Imposing shortened medical malpractice statues of limitation for children and

medical malpractice statutes of repose absolutizes the practice of medicine over the best

interests of children. The medical malpractice of repose, c.231 sec.60 D, as applied to

children as well as to adults, is especially cruel and irrational with respect to latent

injuries, or delayed manifestation injuries caused by medical malpractice. One justice

soundly stated that "[i]t is axiomatic that a statute of limitations does not begin to run

against a cause of action before that cause of action exists." Austin v. Livak, 682 P.2d 41,

54 (Colo. 1984)(Dubofsky J., concurring)(quoting Dincher v. Marlin Firearms Co., 198

F.2d 821, 823 (2d Cir. 1952)(Frank, J., dissenting).

The solicitude of the law for the interests of minors argues against medical

malpractice statutes of repose. See Gaudette v. Webb, 362 Mass. 60 (1972).

There is developing law that the appropriate standard for courts to protect children

will be the "best interests of the child" standard. Consider the case of handicapped

newborns.24 At birth, a child has met the constitutional requirement for personhood with

full rights including rights to remedy if his or her birth defect is the result of medical

malpractice. Medical malpractice statutes of repose are the result of insurance

corporations' and health care providers' lobbying efforts. To discriminate against injured

24 James Bopp, Jr., Protection of Disabled Newborns: Are There Constitutional Limitations,

Issues in Law and Medicine, Vol. 1, No. 3, National Legal Center for the Medically Dependentand Disabled, Inc. (November 1985).


35/53

21

and potentially handicapped newborns and children who, as in this case, were victims of

medical malpractice, the most vulnerable population, and least able to protect

themselves, while discriminating25 in favor of the powerful, monied special interest group

of health care providers,26 insurers and corporations who lobbied for the medical

malpractice statute of repose, by giving special benefits to certain medical providers, who,

as in this case, who have actually injured these children is a complete and arbitrary

25 One of the fundamental Constitutional obligations of the federal government is the

protection of vulnerable minorities. This obligation, as outlined in the Bill of Rights and laterin the Fourteenth Amendment to the United States Constitution, forms the basis for theuniquely American notion of civil rights and liberties. Premised on the belief that democracy,if unconstrained, may lead to the tyranny of the majority, the Equal Protection Clause of theFourteenth Amendment forms the principal Constitutional basis for federal governmentaction to protect discrete and identifiable groups of individuals from the arbitrary, capricious,or even hostile actions of public agencies. Certainly the political, social and legal history ofpervasive discrimination against handicapped children in this country is beyond dispute. Forexample, Congress, in passing the Education for All Handicapped Children Act of 1975,officially noted that "one million handicapped children in the United States are excludedentirely from the public school system[s]" Education for All Handicapped Children Act of1975, PUB. L. NO. 94-142 sec. 3(b)(4), 89 Stat. 773, 774 (1975) (codified at 20 U.S.C.A. sec.1400(b)(4)).

26 In American Academy of Pediatrics v. Heckler, 561 F. Supp. at 403, the American

Academy of Pediatrics (AAP) argued that government regulations protecting handicappedinfants would result in "interference with...the practice of medicine...in violation ofconstitutional rights of privacy and confidentiality. Heckler, 561 F. Supp. 395. Thus, the AAPwere arguing that physicians have a right to practice medicine, protected by the Constitutionfrom unwarranted state interference. If the doctors' claims are based upon a doctor'sindependent right to administer medical care, that right has no greater strength than thepatient's right to receive care. There is no independent physician's right to practice medicineprotected by the Constitution. Whalen v. Roe, 429 U.S. 589, 604 (1977). The assertion hasbeen made that physicians have a Fourteenth Amendment property right to practicemedicine. See YWCA v. Kugler, 342 F. Supp. 1048, 1066 (D.N.J. 1972). It could be claimedthat state protection of children and adults injured by medical malpractice would impede thisproperty right. To the extent that physicians have a property right in their medical practice, itis not a fundamental constitutional right. "The regulation of health professions, for thepreservation and protection of public health, is universally regarded as a duty of the state inthe exercise of inherent policy power." Iowa Department of Health v. VanWyk, 320 N.W.2d599, 605 (Iowa 1982). citing 61 Am. Jur.2d Physicians, Surgeons, Etc., sec. 132 (1981).

The asserted right to be free to practice a profession falls before a rational stateinterest."[T]he right to pursue any trade or calling is subordinate to the right of the state toregulate such freedom of action where required to protect the public health, safety, orwelfare." Id.


36/53

22

denial of due process and equal protection.

Consider the fact that all states presently require physicians to report suspected

cases of child abuse and/or neglect. Bopp and Balch, The Child Abuse Amendments of

1984 and their Implementing Regulations: A Summary, 1 Issues in Law and Medicine 91,

102 (1985). If the doctor does not report parental child abuse, of all forms, and including

the statutory definition of child abuse and neglect to include the withholding of medical

treatment, the physician commits a breach of statutory duty imposed in his or her

professional capacity when he or she fails to report. Data indicate that many abused and

neglected children recognized by educational, medical and mental health professionals

are not reported to the local Child Protection Services. See U.S. Department of Health

and Human Services, Study Findings: Study of National Incidence and Prevalence of

Child Abuse and Neglect: 1988 (Washington DC: U.S. Government Printing Office, 1988);

See also U. S. Department of Health and Human Services, National Center on Child

Abuse and Neglect, A Coordinated Response to Child Abuse and Neglect: A Basic

Manual(nearly 1 million children nationwide experienced demonstrable harm as a result of

maltreatment in 1986, while 1.5 million experienced abuse or neglect if children "at risk of

or threatened with harm" are included in the estimate).

This breach of statutory duty of medical professionals to report child abuse and

neglect, including medical neglect, serves as the basis for medical malpractice liability.

Physicians are legally mandated to report child abuse,27 and not reporting it has serious

consequences. Failure to diagnose, or report, based on reasonable suspicion of child

27 The Massachusetts Child Abuse and neglect reporting statute is at Mass. Gen. Laws Ann.

ch. 119 sec. 51A (West Supp. 1986). See generally, Note, Surveying Massachusetts' ChildAbuse Laws: The Best Protection for Children? 26 Suffolk Law Review 107 (Spring 1992).


37/53

23

abuse and neglect has led to law suits and awards in a number of states. 28 Infants and

other children are plainly the class intended to be protected by the state child abuse

statutes, and prevention of continued neglect is plainly the harm which they seek to

prevent. In situations where the parent is abusive or neglectful, it cannot be expected that

the child can count on them to bring the cause of action for the tort inflicted upon him or

her, since the child ostensibly has a cause of action against the physician and against his

or her parents, so obviously the seven year statute of repose will disable a child abused

to remedy their wrong vis a vis a doctor who failed to report the abuse. Moreover, if a

child victim of medical malpractice has been removed from the home due to child abuse

and neglect, it is the Department of Social Services (DSS) or the child's legal guardian

who may bring tort suits on the child's behalf. If the child's parent never informs the DSS

that the child has an action for medical malpractice, the child will be deprived of his or her

remedy.

The shortened statute of limitations for children and the seven year statute

of repose for medical malpractice as applied to children fails to acknowledge that infants

born with disabilities suffer indifference, discrimination and neglect by physicians, their

own parents, and society. It is not correct to assume that the parent will bring a medical

malpractice action on behalf of the child. 29 None of this data with respect to abused and

28 American Bar Association, Center on Children and the Law, Lawyers for Children, 164

(1990). See, e.g., Landeros v. Flood, 17 Cal. 3d 399, 551 P.2d 389, 131 Cal. Rptr. 69 (1976)(there was liability for failure to diagnose child abuse and report); O'Keefe v. Osorios, No. 70L-14884 (Cook County Cir. Ct. July 24, 1984) (Illinois jury awarded plaintiff $186,851 becausethe doctor failed to comply with state reporting statute; Robison v. Wichal, No. 37607 (SanLuis Obispo Co. Super. Ct. 1972) (suit against four doctors and police chief who failed toreport severely battered boy. Case was settled out of court for $1,000,000).

29 See, National Legal Center for the Medically Dependant and Disabled, The Medical


38/53

24

neglected children was considered by the Cioffi court in thier upholding the shortened

medical malpractice shortened statute against minors. Cioffi v. Guenther, 374 Mass. 1,

370 NE2d 1003 (1977), nor the Tindol court in upholding the architectural statute of

repose against minors. Tindol v. Boston Housing Authority, 396 Mass. 515 (1986). In its

utter deference to the legislature, the courts of the Commonwealth has apparently

abandoned their critical role and vital function as the protectors of the constitutional rights

of its citizens, including its child citizens.

Parents and Children

Parents are considered to be the protectors of their children and to know what is

best for them. This was the reasoning in the Cioffi case. However, as shown above, it is a

heartbreaking fact that many parents fail in their responsibility to protect or love their

children. The legislature's assumption is irrational. There are many other ways in which

the parent cannot be presumed to look out for the child and the child's medical

malpractice interests.

For most Americans, the values of privacy and freedom from government intrusion

are cherished principles, including in family matters. Certain factors, both internal and

external to a family and its individual members, however, affect those rights. When the

basic needs a society recognizes are not met or when rights are violated, such as in the

cases of child maltreatment, society believes it has an obligation to intervene to assist the

affected individuals. In 1874, Henry Burg, founder and president of the Society for the

Prevention of Cruelty to Animals, after being denied assistance by the New York

Treatment Rights of Children with Disabilities, A Litigation Manual, (1987) Chapter 7 TheMalpractice Case.


39/53

25

Department of Charities, brought before the New York City Court a child named Mary

Ellen who had been beaten severely by her parents. The court exercised "protective"

supervision over the child, ruling that she was a member of the animal kingdom and

therefore entitled to legal protection. The following year, the first Society for the

Prevention of Cruelty to Children was formed in the United States.30

Within our constitutional scheme, each state has the power and responsibility to

enact laws that protect the health, safety, and welfare of its residents. This gives the

States some control over the relationship between the child and its community. Thus,

States all have enacted legislation concerning child labor, child custody, education, and

child abuse and neglect.

Federal law recognizes that certain basic protections must exist to ensure a degree

of equal treatment for all children regardless of State of residence. The Child Abuse

Prevention and Treatment Act, serves as a Federal resource to support States' duty and

power to act on behalf of the child when parents are unable or unwilling to do so. This

duty and power arise from theparens patriae doctrine, which vests in the State a right of

guardianship of minors.

The doctrine ofparens patriae has gradually evolved into the principle that the

community, in addition to the parent, has a strong interest in the care and nurturing of

children, who represent the future of the community.31

30 Von Streunsee, JD, MPH, Ed.., Perspectives on Child Maltreatment: Scope, Causes, Effectsand Prevention, at 45. International Academic Press (August 1996) (available fromBookTech, 605 Main St., Winchester, MA; See also Vincent Fontana, MD, Somewhere A Childis Crying.

31 von Struensee supra note 30 at 45.


40/53

26

Thus, there are some exceptions to parent's rights.32 Sometimes the rights of

children and their parents may conflict, as when decisions about whether to treat a

handicapped newborn can lead either to the child's death or to its living a short, painful

life. As children approach adulthood they are allowed to make certain medical decisions

on thier own. Certain kinds of care, such as treatment of sexually transmitted diseases,

abortion and psychiatric treatment involve privacy issues that children may not choose to

share with their parents. In all of these situations a potential medical malpractice incident

could occur where the parent cannot protect the child, because in these instances the

consent of a parent or legal guardian is not required. These are situations of emergency,33

the emancipated minor34, the drug dependent minor,35 voluntary treatment for mental

illness in Department of Mental Health units,36 the common law mature minor rule,37

abortion,38 and children under Department of Social Services care or custody.39

That parents sometimes attempt to withhold medical treatment of children on

32 There is an issue of divided loyalties in maternal-fetal conflicts, and though, as a general

rule, a woman's right to make decisions about her own health care are paramount, there areexceptions when the law attempts to protect the fetus, such as in cases of substance abusingpregnant mothers and forced Caesareans.

33 M.G.L. c. 112 sec. 12F.

34 M.G.L. c. 112 sec. 12F

35 M.G.L. c. 112 sec. 12E.

36 M.G.L. c. 123 sec. 10.

37 Baird v. Attorney General, 371 Mass. 741 (1977).

38 M.G.L. c. 112 sec. 12S.

39 110 CMR 11.00.


41/53

27

religious grounds, such as the case with Christian Scientists or Jehova Witnesses, also

demonstrates that parents are not always necessarily acting on behalf of their children

with respect to medical issues.40 Significant numbers of parents refuse to immunize their

children.41

Another issue is research on children. Suppose research is done on children

without their consent, or with their parent's consent when it is not in the child's best

interest.42 Some medical experimentation on children has occurred without their parents'

consent, such as the retrolental fibroplasia (RLF) study.43 Many children died in the recent

clinical trial of vitamin A. See Hussey and Klein, A Randomized Control of Vitamin A in

Children, 323 New England Journal of Medicine 160-164 (1990).

Consider also the serious problem that in many cases, children who are normal are

locked up in psychiatric institutions by their parents, with the collusion of mental health

workers who are committing thereby medical malpractice. These sad and abused children

are being destroyed by psychiatric tyranny. 44 On April 28, 1992, the U.S. House of

40 See, for example, "Boston Jury Convicts 2 Christian Scientists in Death of Son" New York

Times, July 5, 1990; See also David Margolick, "In Child Deaths, a Test for Christian Science,"New York Times, Aug. 6, 1990.

41 Jacobson v. Massachusetts, 197 U.S. 11 (1905); Michael de Courcy Hinds, "Judge orders

Measles Shots in Philadelphia," New York Times, Mar. 6, 1991.

42 There are circumstances where the minor's consent should be required in addition to

parental consent. See National Commission for the Protection of Human Subjects ofBiomedical and Behavioral Research Report and Recommendations, Research InvolvingChildren 12-13 (U.S. Dept. HEW 1977).

43 Mnookin and Weisberg, Child Family and State, at 653-53 Third Edition (Little Brown andCompany 1995) citing Charles Fried, Medical Experimentation: Personal Integrity and SocialPolicy (1974) (an analysis of the moral problems created by randomized clinical trials).

44 Louise Armstrong, And They Call it Help: The Psychiatric Policing of America's Children,

(Addison-Wesley 1993).


42/53

28

Representatives Select Committee on Children, Youth and Families held a hearing

entitled, The Profit of Misery: How Inpatient Psychiatric Treatment Bilks the System and

Betrays Our Trust. The committee chair, Representative Pat Schroeder, reported that the

committee's investigation found that thousands of adolescents and children as well as

adults have been hospitalized for psychiatric treatment they did not need, that hospitals

hire bounty hunters to find patients with mental health insurance, that patients are held

against their will until the insurance benefits run out, and that psychiatrists are pressured

by the hospitals to alter their diagnoses to increase benefits, and that some school

counsellors get kick backs for delivering students. According to Schroeder, the

Department of Justice briefed her that "current intelligence shows that psychiatric

hospitals and clinics are defrauding Government programs and private insurers of

hundreds of millions of dollars annually. U.S. House of Representatives, Select

Committee on Children, Youth and Families, The Profits of Misery: How Inpatient

Psychiatric Treatment Bilks the System and Betrays Our Trust, (Washington D.C., U.S.

Government Printing Office 1992).

II. MGL c.231 SEC. 60D DISCRIMINATES AGAINST VICTIMS OF MEDICAL

MALPRACTICE IN VIOLATION OF THE GUARANTEE OF EQUAL PROTECTION

A. MGL c. 231 Sec. 60D Discriminates Against Victims of Medical Malpractice

The fundamental mandate of equal protection guarantee is that "all persons

similarly circumstanced shall be treated alike." Plyler v. Doe, 457 U.S. 202, 216 (1982),

quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). The statute explicitly

discriminates against child and adult victims of medical malpractice, and while other child


43/53

29

victims of negligence, such as lead paint poisoning have until three years from their

eighteenth birthdays to bring their claims, medical malpractice child plaintiffs are only

allowed seven years to file their claims.

B. The medical malpractice statute of repose should be subject to heightened scrutiny.

Legislative classifications that infringe fundamental rights or which discriminate

against a" discrete and insular minority" must be shown to be necessary to advance a

compelling state interest. A brief discussion of constitutional standards for judicial review

is instrumental in considering whether government action is constitutionally permissible.

The Supreme Court has found three constitutional levels of judicial review-a rational basis

standard, a strict scrutiny standard, and a middle-level or intermediate scrutiny standard.

Strict Scrutiny Standard

If state action does significantly interfere with or impose a burden on a fundamental

right, courts will not be deferential.45 Courts have traditionally accorded Fourteenth

Amendment due process recognition to one's "life, liberty, or property" . U.S. CONST.

amend. XIV sec. 1. " All persons born or naturalized in the United States, and subject to

the jurisdiction therof, are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges and

immunities of citizens of the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws." Id.

45 See generally, NOWAK, ROTUNDA, & YOUNG, CONSTITUTIONAL LAW 457-61 (1983). The

Supreme Court has protected fundamental rights by using strict scrutiny under the dueprocess clauses of the Fifth and Fourteenth Amendments, and the Fourteenth Amendment'sequal protection clause. Id.


44/53

Documents

MATTHEW HARLFINGER, a minor,By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellants v.HOWARD MARTIN M.D., Defendant/Appellee____________________BRIEF OF AMICUS CURIAECHILDREN'S