COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT SJC No.

08356

____________________ MATTHEW HARLFINGER, a minor, By Marlee Harlfinger and Robert Harlfinger Plaintiffs/Appellants v. HOWARD MARTIN M.D., Defendant/Appellee ____________________ BRIEF OF AMICUS CURIAE CHILDREN'S WATCH ____________________

On Appeal From An Order Of The Suffolk Superior Court ____________________

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

Table of Contents Page Table of Authorities i

Identity of Amicus Curiae

Statement of Interest of Amicus Curiae Statement of the Issues Presented for Review The Nature of the Alleged Medical Malpractice Insurance Crisis The Legislative History Surrounding c.231 sec. 60D Summary of Argument

1 1

2 7 7

Argument

I. THIS COURT SHOULD TAKE CLOSE, INDEPENDENT SCRUTINY OF LEGISLATION 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 Legislature as 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

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 MEDICAL MALPRACTICE IN VIOLATION OF THE GUARANTEE OF EQUAL PROTECTION VICTIMS 29 OF

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 RELATIONSHIP TO LEGISLATIVE GOALS OF REPOSE BEAR NO RATIONAL 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 the Statute 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

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

TABLE OF AUTHORITIES Cases American Academy of Pediatrics v. Heckler, 561 F. Supp. 403. Page 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). Austin v. Litvak, 682 P.2d 41 (Colo. 1984). Baird v. Attorney General, 371 Mass. 741 (1977). Bolin Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala. 1983). Carey v. Populations Services International, 431 U.S. 678 (1979). 33 16 7,21 27 2

31,

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

Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). Carson v. Maurer, 424 A.2d 825 (N.H. 1980). Cioffi v. Guenther, 374 Mass. 1, 370 NE2d 1003 (1977).

7 7 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). Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982).

2 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). Craig v. Boren, 429 U.S. 190 (1976). Crier v. Whitecloud, 496 So. 2d 305 (La. 1986). Davis v. Dow Chemical Corp., 819 F.2d 231 (9th Cir. 1987. Dawson v. Gerritsen, 720 S.W.2d 714 (Ark. 1986). DeLuna v. Rizkallah, 754 S.W.2d 366 (Tex. App. 1988). Douglas v. Hugh A. Stallings, 870 F.2d 1242 (7th Cir. 1989) 36,38 33 3 6 3 7 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). Farley v. Engelken, 740 P.2d 1058 (Kan. 1987). 14 12, 16

Fitz v. Dolyak, 712 F.2d 330 (8th Cir. 1983). Foley v. Connelie, 435 U.S. 291 (1978). Gaines v. Preterm-Cleveland, 514 N.E.2d 709 (Ohio 1987).7 Gaudette v. Webb, 362 Mass. 60 (1972). Gay v. Rabon, 280 Ark. 5, 662 S.W. 2d 836 (1983). Hardy v. Vermeulen, 32 Oh. St. 3d 45, 512 N.E.2d 626 (Ohio 1987). Harrison v. Shrader, 569 S.W.2d 822 (Tenn. 1978). Hayes v. Mercy Hosp., 557 N.E.2d 873 (Ill. 1990). Hoem v. State, 756 P.2d 780 (Wyo. 1988). Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983).

3 33

21 2

7 3 3 14 3

Iowa Department of Health v. VanWyk, 320 N.W.2d 599, 605 (Iowa 1982). 22 Jacobson v,. Massachusetts, 197 U.S. 11 (1905). James v. Salem Hosp., 762 P.2d 303 (Ore App. 1988) Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404 N.E.2d 585. Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (Kan. 1988). 28 3

11

Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (Ariz. 1984). 6,14,17 Klein 31,33,36 v. Catalano, 386 Mass. 701 (1982).

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

Loving v. Virginia, 388 U.S. 1 (1969). Lyons v. Lederle Labs, 440 N.W. 2d 769 (S.D. 1989). Marbury v. Madison, 5 U.S. 137 (1803). Matthews v. Lucas, 427 U.S. 495 (1976). McCollum v. Sisters of Charity, 799 S.W.2d 15 (Ky. 1990). McGowan v. Maryland, 366 U.S. 420 (1961). 7

15

16 32 7 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). Myrick v. James, 444 A.2d 987 (Me. 1992). Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir. 1982). Neagle v. Nelson, 685 S.W.2d 11 (Tex. App. 1985). 7 3 3 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). Phelan v. Hauft, 471 So. 2d 648 (Fla. App. 1985). 3 2

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 31 Plyler v. Doe, 457 U.S. 202 (1982). Public Health Trust v. Knuck, 495 So. 2d 834 (Fla. App. 1986) Pruneyard Shopping Center v. Robins 447 U.S. 74 (1980).19 7 28

Rascoe v. Anabtawi, 730 S.W.2d 460 (Tex. App. 1987). Reese v. Rankin Fite Mem. Hosp., 403 So. 2d 158

(Ala. 1981). Roberts v. Durham County Hosp., 289 S.E.2d 875 (N.C. App. 1982). Robison v. Wichal, No. 37607 (San Luis Obispo Co. Super. Ct. 1972). Roe v. Wade, 410 U.S. 113 (1973).

23 32

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1972). 14,15 Sax v. Votteler, 648 S.W.661 (Tex. 1983). Shapiro v. Thompson, 394 U.S. 618 (1967). Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984). Shields v. Buckholz, 515 So. 2d 1379 (Fla. App. 1987). 7 15 7 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). Smith v. Smith, 354 S.E.2d 36 (S.C. 1987). Sorenson v. Sorensen, 339 N.E.2d 907 (1975). Stein v. Katz, 567 A.2d 1183 (Conn. 1989). Stephens v. Snyder Clinic Assn., 230 Kan. 115, 631 P.2d 222 (1981). Strahler v. St. Luke's Hosp., 706 S.W. 2d 7 (Mo. 1986). Thomas v. Niemann, 397 So. 2d 90 (Ala. 1981). Tindol v. Boston Housing Authority, 396 Mass. 515 (1986). Torres v. County of Los Angeles, 257 Cal. Rptr. 211 (App. 1989). Tsai v. Wells, 725 S.W.2d 271 (Tex. App. 1986).

2 3 19 2

3 7 2 25,37

6 7

Tucker v. Nichols, 431 So. 2d 1263 (Ala. 1983). United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973). Vealey v. Clegg, 579 P.2d 919 (Utah 1978). Whalen v. Roe, 429 U.S. 589, 604 (1977). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Young v. Haines, 41 Cal. 3d 883 (1986). YWCA v. Kugler, 342 F. Supp. 1048, 1066 (D.N.J. 1972). Waggoner v. Gibson, 647 F. Supp. 1102 (ND Tex. 1986). Zablocki v. Redhail, 434 U.S. 374, 388 (1978).

35 3 22

12 20 22 13 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. M.G.L. c. 119 sec. 51A. M.G.L. c. 112 sec. 12F. M.G.L. c. 112 sec. 12E. M.G.L. c. 123 sec. 10. M.G.L. c. 112 sec. 12S. 110 CMR 11.00. Fla. Stat. sec. 95.031(2). Vt. Stat. Ann. tit. 12 sec. 518. U.S. CONST. amend. XIV sec. 1. passim 23 27 27 27 28 28 2 2 passim

Massachusetts Declaration of Rights Magna Charta OTHER AUTHORITIES 16A Am. JUR.2d Constitutional Law sec. 376 (1979).

passim 16

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 Rights, 90 Harv. L. Rev. 489 (1977). Protection of Individual 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

York Times, Aug. 6, 1990. Federalist Papers, No. 78 (Mod. Lib. Ed. 1941).

28 10

Feldman and Abney, The Double Security of Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20 Ariz. St. L. J. 115 (1989). 11 United States General Accounting Office, Characteristics of Claims Closed in 1984 (April 1987). Medical Malpractice: 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 Individual Liberties, 18 HARV. J. ON LEGIS. 143 (1981). 4,8 ,33 Linde, First Things First: Rediscovering Rights, 9 U. Balt. L. Rev. 379 (1980). the States' Bill 11 of

Louise Armstrong, And They Call it Help: The Psychiatric Policing of America's Children (Addison-Wesley 1993). 29

Michael de Courcy Hinds, "Judge Orders Philadelphia" New York Times, Mar. 6, 1991.

Measles

Shots 28

in

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

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 of Biomedical 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: Protection for Children? 26 Suffolk Law Review 107 (Spring 1992). The 21 Best

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, 31

Rotunda

&

Young,

CONSTITUTIONAL

LAW

457-61

(1983).

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 and Negligence 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

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

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

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
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).
1

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).
2

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 and statute 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 do not violate single-subject requirement); Tucker v. Nichols, 431 So. 2d 1263 (Ala. 1983)(2-year medical malpractice statute of repose does not violate open courts provision because statute contains savings clause for after-discovered injury); Bolin Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala. 1983)(medical malpractice statute of limitations does not violate equal protection); Arkansas: Gay v. Rabon, 280 Ark. 5, 662 S.W. 2d 836 (1983)(upholds requirements of 60-day notice to health care defendant prior to filing suit); Accord Simpson v.
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. Francis Hosp., 401 A.2d 77 (Del. 1979)(medical malpractice two-year statute of limitations does not violate 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 in medical malpractice cases, even though no alternative remedy provided, on grounds of "overpowering public necessity" (as demonstrated by rising insurance rates) and no reasonable alternative to cure insurance crisis, certifies question to Supreme Court); Shields v. Buckholz, 515 So. 2d 1379 (Fla. App. 1987) (upholds four-year statute of repose in Medical Malpractice 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 courts guarantee); Idaho: Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983)(2-year medical malpractice 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 of limitations for medical malpractice actions does not violate due process or guarantee against special legislation; Hayes v. Mercy Hosp., 557 N.E.2d 873 (Ill. 1990)(Four year statute of repose for medical malpractice upheld); Indiana: Johnson v. St. Vincent Hospital, Inc., 273 Ind. 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 limitations does 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. Snyder Clinic Assn., 230 Kan. 115, 631 P.2d 222 (1981) (Statute of repose for medical cases does not violate equal protection); Louisiana: Crier v. Whitecloud, 496 So. 2d 305 (La. 1986) (threeyear statute of limitations for medical cases does not violate due process, equal protection or access to courts. Maine: Myrick v. James, 444 A.2d 987 (Me. 1992)(2-year statute of limitations 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 of repose 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 state constitutions). 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 due process). North Carolina: Roberts v. Durham County Hosp., 289 S.E.2d 875 (N.C. App. 1982 (10-year medical malpractice statute of repose upheld). Oregon: James v. Salem Hosp., 762 P.2d 303

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 limitations and 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 repose upheld). Washington: Duffy v. King Chiropractic Clinic, 17 Wash. App. 693, 565 P.2d 435 (1977) (medical malpractice statute of repose upheld). 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).
4

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 the statutory period makes rate-setting that much more difficult" Redish, Legislative Response to the 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, the longer the period of risk, or long tail extends for the insurance company. Id.
5 6

Id. at 761, 765.

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, 32 VILL. L. REV. 1219, 1220 (1987).
7

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
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).
8

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 also Breaden, Perspectives in Medical Discipline, 76 FED"N BULL. 42, 48 (February 1989)(Bulletin of the Federation of State Medical Boards of the United States, Inc.).
9

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 claim even for major injuries resulting from malpractice. A study of New York hospitals concluded that thousands of deaths and tens of thousands of injuries result from medical malpractice yearly, 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 at A15, col.1.
10 11

Id.

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,
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 crisis are 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 Hospitalized Patients, 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 States considered the problems of medical malpractice insurance and litigation. See, 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, 161 n. 92 and accompanying text (Spring 1992).
12

Breaden, Concentrating on the Problem Physician: Perspectives in Medical Discipline, 76 FED'N Bull. 68, 76 (March 1989) (Bulletin of the Federation of State Medical Boards of the United States )(citing a report that up to 15 percent of physicians at some point in their careers will become impaired, largely due to drugs and alcohol).
13 14

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

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 Liability Insurance Crisis? 32 VILL. L. REV. 1299, (1987). 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, 688 P.2d 961 (Ariz. 1984) (abolition of discovery rule violates fundamental right to recover for injuries; 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 unconstitutional without 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) (medical malpractice statute of limitations for minors violates equal protection clause in absence of discovery rule); Colorado: Austin v. Litvak, 682 P.2d 41 (Colo. 1984) (three-year statute of repose in medical malpractice actions would be unconstitutional but for judicially engrafted exception 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 repose violates 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 malpractice statute of repose of five years from negligent act violates state constitutional open court guarantee); Missouri: Strahler v. St. Luke's Hosp., 706 S.W. 2d 7 (Mo. 1986)(statute of limitations requiring minor to sue before age of majority violates state guarantees of access to courts); New Hampshire: Carson v. Maurer, 424 A.2d 825 (N.H. 1980) (abolition of discovery rule and 60-day prefiling notice requirement violate state equal protection guarantee); Coffey v. Bresnahan, 506 A.2d 310 (N.H. 1986)(special 2-year statute of limitations 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 malpractice statute of limitations violates state equal protection); Mominee v. Scherbath, 28 Oh. St. 3d 270, 503 N.E.2d 717 (Ohio 1986)(statute requiring a medical malpractice plaintiff to bring action within 1 year of accrual and no more than four years of incident is unconstitutional as applied to minors); Hardy v. Vermeulen, 32 Oh. St. 3d 45, 512 N.E.2d 626 (Ohio 1987) (four year statute of repose as applied to plaintiff who could not have discovered injury within time limit violates state guarantee of right to a remedy); Gaines v. Preterm-Cleveland, 514 N.E.2d 709 (Ohio 1987) (statute of repose unconstitutional as applied to plaintiff who discovers injury after three years, but less than four, violates guarantee of open courts and due process); South Dakota: Lyons v. Lederle Labs, 440 N.W. 2d 769 (S.D. 1989)(shorter statute of limitations for minors with medical malpractice claims violates equal protection of state and federal constitution); Texas: Sax v. Votteler, 648 S.W.661 (Tex. 1983)(shortened statute of limitations for minors unconstitutional, violated right to remedy because statute abolished minor's right to bring a well-established cause of action before he knew of injury or before it
15

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 applied where 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 abolishes discovery rule, right of access to courts requires court to give reasonable period to discover injury); DeLuna v. Rizkallah, 754 S.W.2d 366 (Tex. App. 1988)(Under Morrison, plaintiff is entitled to benefit of discovery rule); Rascoe v. Anabtawi, 730 S.W.2d 460 (Tex. App. 1987)(2year statute of limitations does not violate open courts unless plaintiff can show he could not have 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 holds plaintiff's action timely, and does not reach issue of constitutionality of statute). 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, (January 8, 1976).
16

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

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 professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the full age of six years shall have until his ninth birthday in which the action may be commenced, but in no event shall any such action be commenced more than seven years after occurrence 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 a foreign 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 in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority. Limitations of this kind can be reserved and practiced no other way than through the

10

medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tender of the constitution void. Without this, all the reservations 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

11

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

12

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's specific declarations in statutes that such a crisis does exist and that the substantive portions of the statute are intended to alleviate that crisis. A better approach for those courts that have yet to decide the issue would be, however, to take a more skeptical attitude toward the evidence presented by the medical profession and the insurance industry....Proper scrutiny of the constitutional validity of state legislation demands more than a perfunctory deferral to the legislature's conclusions regarding the existence of a health care crisis in a particular state. Comment, Constitutional Challenges to Medical Malpractice Review Boards, 46 Tenn. L. Rev. 607,

13

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 of Children 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 touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived", "infringed" or "interfered" with the free exercise of some such fundamental personal right or liberty.

14

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.

15

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).

16

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 in providing economic relief to one segment of society by depriving those who have been wronged of access to, and remedy by, the judicial system. If such a hypothesis were once approved, any profession, business or industry experiencing difficulty could be made the beneficiary of special legislation designed to ameliorate its economic adversity by limiting access to the courts by those whom they have damaged. Under such a system, our constitutional guarantees would be gradually 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. Id. at 87, 688 P.2d at 979. Id. at 84, 688 P.2d at 976. Id. at 84, 688 P.2d at 976.

19

20 21

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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
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 also Cargill v. Waste Management, Inc., No 95 L 7867 (Ill. Cir. Ct. 1st Dist., May 22, 1995)(widely respected conservative jurist invalidated the centerpiece of Illinois tort reform statute based on six separate and independent state constitutional arguments).
22 23

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

18

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 of limitations with narrow tolling provisions for all malpractice plaintiffs is rationally related to this goal. However, it is difficult to see how discrimination against minor malpractice plaintiffs...is rationally related to
constitutionality of limiting remedies. Just as the Worker's Compensation scheme was deemed constitutional because some compensation was given to replace the rights taken, so were compensation schemes in environmental cases viewed as constitutional because an alternative remedy was given in return. See Duke Power v. Carolina Environmental Study Group, 438 U.S. 59 (1978). See also Pruneyard Shopping Center v. Robins, 447 U.S. 74, 93 (1980) (Marshall, J. concurring).

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this or any other ascertainable legislative goal. The fact that such discrimination against minors would bar some meritorious claims and thereby reduce total malpractice liability is not enough to justify it. If claims are reduced in an arbitrary manner, the classification scheme denies equal protection 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
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 Dependent and Disabled, Inc. (November 1985).
24

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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
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 later in the Fourteenth Amendment to the United States Constitution, forms the basis for the uniquely 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 the Fourteenth Amendment forms the principal Constitutional basis for federal government action 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 of pervasive discrimination against handicapped children in this country is beyond dispute. For example, Congress, in passing the Education for All Handicapped Children Act of 1975, officially noted that "one million handicapped children in the United States are excluded entirely from the public school system[s]" Education for All Handicapped Children Act of 1975, 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)).
25

In American Academy of Pediatrics v. Heckler, 561 F. Supp. at 403, the American Academy of Pediatrics (AAP) argued that government regulations protecting handicapped infants would result in "interference with...the practice of medicine...in violation of constitutional rights of privacy and confidentiality. Heckler, 561 F. Supp. 395. Thus, the AAP were arguing that physicians have a right to practice medicine, protected by the Constitution from unwarranted state interference. If the doctors' claims are based upon a doctor's independent right to administer medical care, that right has no greater strength than the patient's right to receive care. There is no independent physician's right to practice medicine protected by the Constitution. Whalen v. Roe, 429 U.S. 589, 604 (1977). The assertion has been made that physicians have a Fourteenth Amendment property right to practice medicine. See YWCA v. Kugler, 342 F. Supp. 1048, 1066 (D.N.J. 1972). It could be claimed that state protection of children and adults injured by medical malpractice would impede this property right. To the extent that physicians have a property right in their medical practice, it is not a fundamental constitutional right. "The regulation of health professions, for the preservation and protection of public health, is universally regarded as a duty of the state in the exercise of inherent policy power." Iowa Department of Health v. VanWyk, 320 N.W.2d 599, 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 state interest."[T]he right to pursue any trade or calling is subordinate to the right of the state to regulate such freedom of action where required to protect the public health, safety, or welfare." Id.
26

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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
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' Child Abuse Laws: The Best Protection for Children? 26 Suffolk Law Review 107 (Spring 1992).
27

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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.
28 29

None of this data with respect to abused and

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. 70 L-14884 (Cook County Cir. Ct. July 24, 1984) (Illinois jury awarded plaintiff $186,851 because the doctor failed to comply with state reporting statute; Robison v. Wichal, No. 37607 (San Luis Obispo Co. Super. Ct. 1972) (suit against four doctors and police chief who failed to report 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

23

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 The Malpractice Case.

24

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 the parens patriae doctrine, which vests in the State a right of guardianship of minors. The doctrine of parens 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
Von Streunsee, JD, MPH, Ed.., Perspectives on Child Maltreatment: Scope, Causes, Effects and Prevention, at 45. International Academic Press (August 1996) (available from BookTech, 605 Main St., Winchester, MA; See also Vincent Fontana, MD, Somewhere A Child is Crying.
30 31

von Struensee supra note 30 at 45.

25

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
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 are exceptions when the law attempts to protect the fetus, such as in cases of substance abusing pregnant mothers and forced Caesareans.
32

33

M.G.L. c. 112 sec. 12F. M.G.L. c. 112 sec. 12F M.G.L. c. 112 sec. 12E. M.G.L. c. 123 sec. 10. Baird v. Attorney General, 371 Mass. 741 (1977). M.G.L. c. 112 sec. 12S. 110 CMR 11.00.

34

35

36

37

38

39

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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.
40 44

On April 28, 1992, the U.S. House of

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. Jacobson v. Massachusetts, 197 U.S. 11 (1905); Michael de Courcy Hinds, "Judge orders Measles Shots in Philadelphia," New York Times, Mar. 6, 1991.
41

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 of Biomedical and Behavioral Research Report and Recommendations, Research Involving Children 12-13 (U.S. Dept. HEW 1977).
42

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

Louise Armstrong, And They Call it Help: The Psychiatric Policing of America's Children, (Addison-Wesley 1993).
44

27

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

28

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.
See generally, NOWAK, ROTUNDA, & YOUNG, CONSTITUTIONAL LAW 457-61 (1983). The Supreme Court has protected fundamental rights by using strict scrutiny under the due process clauses of the Fifth and Fourteenth Amendments, and the Fourteenth Amendment's equal protection clause. Id.
45

29

Rational Basis Standard States have inherent police power to implement reasonable regulations to protect the public safety, health, morals and welfare. Legislative power to enact these protective regulations is extremely broad. See 16A AM. JUR.2d Constitutional Law sec. 376 (1979). If the state action does not significantly interfere with 46 or impose a burden on47 the exercise of a fundamental right, then the regulation only need be 'rationally related' to a 'constitutionally permissible' purpose to pass constitutional muster.48 Conceivably, courts will apply the lowest level of judicial review, the rational basis test, under a United States constitutional challenge to medical malpractice statutes of repose. Here, we can demonstrate that the medical malpractice statute of repose is not rationally related to furthering a legitimate state interest. Medical malpractice statutes of repose do not further the legitimate interest of affordable health care to the public, and thus violate the equal protection and due process clauses of the fourteenth amendment. Middle-Level or Intermediate Scrutiny The United States Constitution protects certain interests which are not fundamental rights, and thus not deserving of strict scrutiny, but which are important enough to require heightened scrutiny during judicial review, arguably the right to a remedy is such a right, and especially the right to a remedy for a child who has no one to assert the right for him or her. When strict scrutiny is applied, state action will be upheld only if it serves a

46 47 48

Zablocki v. Redhail, 434 U.S. 374, 388 (1978). Carey v. Populations Services International, 431 U.S. 678, 686 (1979). Andrews v. Ballard, 498 F. Supp. 1038, 1051 (S.D. Tex. 1980), citing Lindsey v. Normet,

30

compelling state interest and is narrowly drawn to meet that compelling interest. 49 When middle-level scrutiny is applied, state action is valid if it serves an important50 or significant51 state interest. Medical malpractice statutes of repose have been shown above not to serve the important state interest of affordable health care. Middle-level scrutiny is used when state action seeks to distinguish between groups on the basis of gender52, illegitimacy53 and alienage.54 Middle-level scrutiny is used to review state regulation of certain activities of minors. For instance, significant state interest is needed to restrict a minor's access to contraceptives 55 or decision to have an abortion.56 Similarly, a significant state interest is needed to restrict a minor's access to the courts for medical malpractice injuries. No such interest exists here. Victims of malpractice, and child victims of medical malpractice are arguably a discrete and insular minority. See Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional "Quid Pro Quo" Analysis to Safeguard Individual Liberties, 18 HARV. J. ON LEGIS. 143 (1981). III. STATUTES OF REPOSE BEAR NO RATIONAL RELATIONSHIP TO
49

Roe v. Wade, 410 U.S. 113, 154-156 (1973). Lalli v. Lalli, 439 U.S. 259, 275-76 (1978); H.L. Matheson, 450 U.S. 398, 413 (1981). Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976). Craig v. Boren, 429 U.S. 190 (1976). Lalli, 439 U.S. 259. Foley v. Connelie, 435 U.S. 291 (1978). Carey, 431 U.S. at 693-94. Planned Parenthood, 428 U.S. at 75; H.L., 450 U.S. 398.

50

51

52

53

54

55

56

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LEGISLATIVE GOALS A. The Relationship Between the Classification and Legislative Goals Must be Rational Under the Circumstances in Which the Statute Will Operate. At the very minimum, legislation must satisfy the rational basis analysis. This standard of review, while minimal, is not "toothless". Matthews v. Lucas, 427 U.S. 495, 510 (1976). An oft-cited formulation is that "statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426 (1961). That dictum, however, does not permit a court to ignore the factual circumstances in which the statute will operate. McGowan itself upheld the exemption of certain businesses such as gas stations from Sunday closing laws. Though the statute did not explicitly state the purpose of the exemption, the Court found that a family on a Sunday outing will need gasoline, and the "record is barren of any indication that this apparently reasonable basis does not exist." 366 U.S. at 426. The U.S. Supreme Court's detailed the application of the rational basis standard in City of Cleburn v. Cleburn Living Center, 473 U.S. 432 (1985). A special zoning requirement effectively barred a house for the handicapped from a residential location. The municipality's justifications for the measure included prevention of crowding, fire protection, proximity to a school, and protection of the patients themselves. The zoning restriction would have been a valid step in furtherance of any of these justifications under some conceivable set of facts. However, the Court examined the actual circumstances in which the regulation was intended to operate and found that there was no rational basis

32

for the council to believe that the restriction would serve its stated purposes. Id. at 449-50. See also, Metropolitan Life Ins. Co. v. Ward, 105 S. Ct. 1676 (1985) (striking down a tax preference for in-state insurers, since the manner in which insurers actually operate made it irrational to believe that it would foster domestic companies); United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) (striking down denial of food stamps to households composed of unrelated persons, finding that the "practical operation" of the regulation was not rationally based). "The term "rational" of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class." City of Cleburne v. Cleburne Living Center, 473 U.S. at 452 (1985) (Stevens and Burger, JJ., concurring). Even if this Court accords great deference to the legislature's assumption that the statute will assure the continuance of health care delivery to the citizens of the commonwealth, lawmakers could not logically believe that this was so absent regulations requiring health care delivery and none exist. Cioffi is distinguishable from the case at bar, inasmuch as it dealt with the statute of limitations and not the statute of repose, and did not consider the fact that parents are not always mindful of their children's medical and legal interests. 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 the Statute of Repose Cannot Pass Constitutional Muster The Medical Malpractice Statute of Repose Cannot Even Pass a

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Rational Basis Test 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 the medical malpractice statute of repose cannot pass constitutional muster. Jurisdictions which find statutes of repose unconstitutional, often do so because they can discern no reasonable relationship between the state purpose and protected classes. See generally 93 A.L.R. 3d. 1242, 1251 (1985). That is the case here. The courts of the Commonwealth have deferred to the wisdom of the legislature to establish the rational basis for the classifications inherent in the statute. In refusing to act as a "super legislature", the court in Klein v. Catalano, 386 Mass. 701 (1982) held that its role was "limited to determining whether the classification involved 'rationally furthers a legitimate state interest" '. Id. at 715 (citations omitted). See also id. at 717. Generally, the court will not inquire into the wisdom of the legislature unless to not do so would amount to a denial of justice. Anderson v. Phoenix Inv. Counsel of Boston, 387 Mass. 444, 454 (1982). In this case since we have shown that the medical malpractice insurance crisis was illusory, that the statute of repose has not resulted in affordable health care for citizens, and that parents, especially in situations of child abuse and neglect, do not always ensure that their child's tort claims will be filed, we have met the heavy burden and overcome the presumption the well established presumption of constitutional validity given to statutes such as the one at bar. The medical malpractice statute of repose was plainly designed to limit the exposure of liability insurers at the expense of injured medical malpractice victims, and, in

34

this case, newborns handicapped by medical malpractice. The purpose of insurance is to shift risk from individuals to a group that can spread the cost. It is not a proper public purpose to reduce risk for insurers by imposing them on injured individuals, including newborns and children. Nor is it a legitimate purpose to provide a benefit to a privileged group, health care providers, at the expense of a relatively small group of persons wrongfully injured by providers, included in that group are newborns and children injured by medical malpractice, whose injuries may have latency periods extending beyond the repose period. Classes Protected Under c.231 sec.60D With respect to the equal protection argument there is no rational basis for the arbitrary distinction between health care providers and insurance companies who enjoy the protections of the medical malpractice statute of repose and injured victims and injured children who are not protected. In Klein, the court followed a long established standard of Massachusetts cases holding that, absent a suspect classification, the court's role is limited to determining whether the classification rationally furthers a legitimate state interest. Klein, 386 Mass. at 715 (citations omitted). However, this statute violates equal protection clauses in that the arbitrary classifications does not rationally further the stated state interest. Moreover, since injured children and injured victims fundamental right to remedy is violated by this statute, thereby violating due process, more than the minimum rationality standard of review of legislative classification applies. Since the report on the medical malpractice crisis commissioned by the legislature itself concludes that the data on the causes of the crisis are unreliable it 's discrimination against injured children and

35

adult victims of medical malpractice in favor of insurance corporations and health care providers was neither justifiable, nor rational. Cf. Cournoyer, 744 F.2d. at 212, quoting Frazier v. Manson, 703 F.2d. 30, 34 (1983). 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. The Medical Malpractice Statute of Repose is not rationally related to promoting more affordable health care to the public, a fallacious argument often raised by insurance companies, 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 for the public. This argument assumes that liability costs are a significant factor in overall health care costs. In fact, medical malpractice insurance premiums are influenced primarily by other factors, including, as discussed above, interest rates and the business cycle. The costs of the premiums themselves account for only 1% of health care expenditures. Statutes of repose are particularly ineffective in reducing the cost of health care. First, the medical malpractice statute of repose, while devastating to individual plaintiffs seeking compensation and medical expenses for their injuries, does not affect enough cases to generate significant "savings" for liability insurers. Figures from the General Accounting Office in 1984 indicate that only 6 % of all medical malpractice cases are filed more than three years after the alleged negligence. See United States General Accounting Office, Report to Congressional Requesters, MEDICAL MALPRACTICE: Characteristics of Claims Closed in 1984 (April 1987) at 32. Furthermore, there is no

36

provision in c.231 sec. 60D that would require insurers to pass along savings to their insureds, the health care providers, in the form of lower premiums, or to compel doctors to pass along their lower premiums to patients in the form of lower health care costs. The medical malpractice insurance crisis was illusory and that the statutes of repose enacted in response to it are unconstitutional.57 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." 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" and deprive individuals of due process and equal protection. The medical malpractice statute of repose, like that of the architects and builders statute of repose, arguably unconstitutionally runs even though no accident has yet occurred or injury manifested, Klein v. Catalano, 386 Mass. 701, 708-709 (1982), and even though the plaintiff may be a minor, Tindol v. Boston Housing Authority, 396 Mass. 515 (1986). The statute of repose is unconstitutional, for it discriminates invidiously against injured children and is wholly arbitrary in its classification schemes. " [o]nly the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment" should be struck down as a violation of equal protection. Klein v.

57

Mominee v. Scherbath, 28 Ohio St.3d 270, 293, 503 N.E.2d 717, 735 (1986).

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Catalano, 386 Mass. at 717 quoting Cudahy Co. v. Ragnar Benson, Inc., 514 F. Supp. 1212, 1217 (D. Colo. 1981) and New Orleans v. Dukes, 427 U.S. 297, 303-304 (1976). See also Cournoyer v. M.B.T.A., 744 F.2d 208 (1st Cir. 1984). Here, we have shown that the medical malpractice statute of repose invidiously discriminates and is wholly arbitrary. CONCLUSION In 1975, and 1985, the state legislature, in its haste to respond to a perceived medical malpractice insurance crisis, abridged the right of victims of negligent medical care to a remedy, including the rights of child victims. The cost of this de facto subsidy to the insurance industry is entirely and discriminatorily imposed on medical malpractice plaintiffs, and falls most heavily on the most vulnerable of plaintiffs, injured children and handicapped newborns. Moreover, the statute enacted, does not even bear a rational relationship to achieving the legislature's stated goal. Amici respectfully urge this Court give effect to the provisions which the People of the Commonwealth of Massachusetts placed in their Constitution to safeguard their rights against legislative infringement. We urge that M.G.L. c.231 Section 60 D be stricken as violative of the United States Constitution and the Massachusetts Declaration of Rights.

Respectfully submitted,

_________________________

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Vanessa Susan ORourke von Struensee, Esq. BBO 555267 CHILDREN'S WATCH 25 Ware Street Cambridge, MA 02138 (617) 492-4890 vvonstruen@hotmail.com CERTIFICATE OF SERVICE I hereby certify that I served a copy of this brief on counsel of record, Joseph L. Doherty Jr., Martin, Magnuson, McCarthy and Kenny, 101 Merrimac Street, 7th Floor, Boston, MA 02104, and Keith Halperin, of Boston, MA by U.S. mail postage prepaid on August , 2000.

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