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A Massachusetts law designed to contain medical malpractice litigation applies in a federal diversity case, even where the plaintiff is a New Yorker, a federal magistrate judge has found. U.S. Magistrate Judge David R. Homer held that with no direct conflict between the Massachusetts law and the Federal Rules of Civil Procedure, the commonwealth’s statute and the aim behind that statute must be respected by the federal court. “[F]ailure to apply the Massachusetts statute in diversity actions would undermine Massachusetts’ efforts to curb the insurance costs that spurred the passage of the statute,” Homer said in Caiola v. Berkshire Medical Center Inc., 04-CV-623. The ruling means New Yorkers alleging medical malpractice against a Massachusetts physician or hospital must clear the same hurdles as Massachusetts residents, even when suing in federal court. In Massachusetts, a malpractice plaintiff must appear before a tribunal consisting of a Superior Court justice, a physician and an attorney. A plaintiff who does not prevail before the tribunal must post a $6,000 bond in order to proceed to trial. If the plaintiff also loses at trial, he or she is responsible for attorney, witness and expert fees. Nothing in the Federal Rules of Civil Procedure imposes such a burden. Homer said the burden must be borne by the plaintiff because of a 1938 U.S. Supreme Court decision, Erie v. Tompkins, 304 US 64. Under the so-called Erie Doctrine, federal courts presiding over diversity cases must generally apply state substantive law and federal procedural rules. Massachusetts’ malpractice strictures are not just procedural, Homer found. The case involves a resident of Columbia County who badly cut his hand on a jagged piece of sheet metal. The man, John Caiola, contends that physicians at Berkshire Medical Center in Massachusetts neglectfully misdiagnosed the extent of the injury, leading to further damage. As a New York resident suing defendants in Massachusetts, Caiola is entitled to bring a case in federal court as a result of diversity of citizenship. Homer said that in cases where there is a “direct collision” between the federal rules and the state statute, the federal practice generally applies. Here, however, he said that while there are procedural similarities between the Massachusetts law and Rule 16 of the Federal Rules of Civil Procedure, the aim is different. “The purpose of Rule 16 is to manage pretrial proceedings to increase the efficiency and flexibility of the federal courts and simplify the issues,” Homer wrote. “The purpose of the Massachusetts law is to reduce malpractice insurance premiums.” Homer said that while there is some overlap, there is no direct contradiction, meaning that the Erie test of substantive versus procedural discrepancies applies. Here, Homer said, the differences are more than procedural and the application of the federal rules would frustrate Massachusetts’ intent. “Failure to apply the Massachusetts law would indeed encourage forum-shopping by out-of-state plaintiffs or out-of-state defendants on Massachusetts medical malpractice claims,” Homer wrote. “Plaintiffs would be more likely to bring such claims in federal court under diversity to avoid the tribunal procedure and the bond requirement. Plaintiffs have an obvious interest in avoiding the screening procedure and bond requirement.” Appearing were Lewis B. Oliver of Albany for the plaintiff; Courtney S. Lane, Lucy Prashker and Lori H. Levinson of Cain, Hubbard, Myers & Cook in Pittsfield, Mass., for the medical center; and Daniel J. Buoniconti of Foster & Eldridge in Cambridge, Mass., for a defendant physician.

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