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MATTHEW HARLFINGER, a minor,By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellants v.HOWARD MARTIN M.D., Defendant/Appellee____________________BRIEF OF AMICUS CURIAECHILDREN'S WATCH____________________On Appeal From An Order Of The Suffolk Superior Court

MATTHEW HARLFINGER, a minor,By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellants v.HOWARD MARTIN M.D., Defendant/Appellee____________________BRIEF OF AMICUS CURIAECHILDREN'S WATCH____________________On Appeal From An Order Of The Suffolk Superior Court

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Published by Susan von Struensee

As the Director of Children's Watch, a non-profit, Massachusetts Corporation which monitored children's rights, I undertook to serve as children’s voice in courts. I was approached by an attorney to assist him on behalf of his child client. In his case, the Superior Court had denied the claims of a child plaintiff for injuries due to medical malpractice on the basis of the statute of repose, a statute which in an earlier case, I argued violated the state and federal Constitutions. Under Massachusetts law, a minor has three years to initiate a medical malpractice lawsuit from the date on which a medical malpractice claim is discovered. If the malpractice occurs before age six, however, the child has until age nine to file a suit. In contrast, the statute of repose embodied in the same provision runs for seven years from the date on which the malpractice occurs, regardless of whether the child has discovered the injury. Unlike statutes of limitations for other tort claims in Massachusetts, the medical malpractice child provision does not toll the action until the minor reaches the age of majority. I was deeply concerned by the issue in the case. I viewed the statutes of repose and limitation as unfair and harsh to injured child plaintiffs, particularly in cases of latent injuries, such as this one, which do not manifest themselves until many years after the act or omission which caused them. I understood that this case had broad policy implications, not only for children, but for the insurance industry, the medical profession, and the trial lawyers. Therefore, I planned to solicit support from professional societies who could speak for their membership as amicus curiae, which means "friend of the court". An amicus curiae submits an amicus brief to the court that provides the judges with supplementary arguments beyond that of the parties involved. Such supplementary arguments could include the review cases from other jurisdictions, or important data. In the case at bar, the amicus would also provide a more creditable advocate for our particular argument, since without an amicus, the court could view the issue as merely one of attorney malpractice, where the plaintiff’s attorney had filed the case too late. I approached the Massachusetts Trial Lawyers Association and the American Trial Lawyers Association Amicus Committee Chairpersons and requested an amicus brief to assist the child party’s position. (Action) At first the Massachusetts Trial Lawyers Association declined, because they did not see the issues as central to its mission. I then contacted the American Trial Lawyers Association’s lead amicus attorney, who saw the issues and strongly believed that a brief should be submitted. He provided me with data and arguments from his national experience on similar cases which I shared with the Massachusetts Trial Lawyers Association, which persuaded them to change their position and support the filing of an amicus brief. Working with the Massachusetts Trial Lawyers Association and American Trial Lawyers Association, we compiled information on the cases filed in suits similar to ours. During the writing phase, there were conflicts among the groups as to what arguments the brief should address. There were also disputes as to who should sign the brief and which organization should present it. I was willing to negotiate and compromise nothwithstanding sometimes bitter internal divisions. I gave small concessions without sacrificing quality. The brief submitted to the court argued that the statutes of repose and limitations for child victims of medical malpractice should be stricken as violative of the United States Constitution and the Massachusetts Declaration of Rights. We also cited the caselaw which our partners had supplied showing that numerous jurisdictions have determined similar statutes to be unconstitutional. The appeal went on to the highest court in the State, which agreed wi

As the Director of Children's Watch, a non-profit, Massachusetts Corporation which monitored children's rights, I undertook to serve as children’s voice in courts. I was approached by an attorney to assist him on behalf of his child client. In his case, the Superior Court had denied the claims of a child plaintiff for injuries due to medical malpractice on the basis of the statute of repose, a statute which in an earlier case, I argued violated the state and federal Constitutions. Under Massachusetts law, a minor has three years to initiate a medical malpractice lawsuit from the date on which a medical malpractice claim is discovered. If the malpractice occurs before age six, however, the child has until age nine to file a suit. In contrast, the statute of repose embodied in the same provision runs for seven years from the date on which the malpractice occurs, regardless of whether the child has discovered the injury. Unlike statutes of limitations for other tort claims in Massachusetts, the medical malpractice child provision does not toll the action until the minor reaches the age of majority. I was deeply concerned by the issue in the case. I viewed the statutes of repose and limitation as unfair and harsh to injured child plaintiffs, particularly in cases of latent injuries, such as this one, which do not manifest themselves until many years after the act or omission which caused them. I understood that this case had broad policy implications, not only for children, but for the insurance industry, the medical profession, and the trial lawyers. Therefore, I planned to solicit support from professional societies who could speak for their membership as amicus curiae, which means "friend of the court". An amicus curiae submits an amicus brief to the court that provides the judges with supplementary arguments beyond that of the parties involved. Such supplementary arguments could include the review cases from other jurisdictions, or important data. In the case at bar, the amicus would also provide a more creditable advocate for our particular argument, since without an amicus, the court could view the issue as merely one of attorney malpractice, where the plaintiff’s attorney had filed the case too late. I approached the Massachusetts Trial Lawyers Association and the American Trial Lawyers Association Amicus Committee Chairpersons and requested an amicus brief to assist the child party’s position. (Action) At first the Massachusetts Trial Lawyers Association declined, because they did not see the issues as central to its mission. I then contacted the American Trial Lawyers Association’s lead amicus attorney, who saw the issues and strongly believed that a brief should be submitted. He provided me with data and arguments from his national experience on similar cases which I shared with the Massachusetts Trial Lawyers Association, which persuaded them to change their position and support the filing of an amicus brief. Working with the Massachusetts Trial Lawyers Association and American Trial Lawyers Association, we compiled information on the cases filed in suits similar to ours. During the writing phase, there were conflicts among the groups as to what arguments the brief should address. There were also disputes as to who should sign the brief and which organization should present it. I was willing to negotiate and compromise nothwithstanding sometimes bitter internal divisions. I gave small concessions without sacrificing quality. The brief submitted to the court argued that the statutes of repose and limitations for child victims of medical malpractice should be stricken as violative of the United States Constitution and the Massachusetts Declaration of Rights. We also cited the caselaw which our partners had supplied showing that numerous jurisdictions have determined similar statutes to be unconstitutional. The appeal went on to the highest court in the State, which agreed wi

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Published by: Susan von Struensee on Feb 20, 2013
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COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT
 SJC No. 08356 ____________________ 
MATTHEW HARLFINGER, a minor,By Marlee Harlfinger and Robert HarlfingerPlaintiffs/Appellantsv.HOWARD MARTIN M.D.,Defendant/Appellee
 ____________________ 
BRIEF OF AMICUS CURIAECHILDREN'S WATCH
 ____________________ 
On Appeal From An Order Of The Suffolk Superior Court
 ____________________ Susan Vanessa O’Rourke von Struensee, Esq.Children's WatchCambridge, MA 02138(617) 492-4890
 
Table of ContentsPageTable of AuthoritiesiIdentity of Amicus Curiae1Statement of Interest of Amicus Curiae1Statement of the Issues Presented for Review1The Nature of the Alleged Medical Malpractice InsuranceCrisis 2The Legislative History Surrounding c.231 sec. 60D7Summary of Argument 7Argument 7I. THIS COURT SHOULD TAKE CLOSE, INDEPENDENT SCRUTINY OFLEGISLATION LIMITING THE RIGHT OF MEDICAL MALPRACTICE VICTIMS TOREMEDY 9A. It is the Constitutional Role of the Judiciary to DeclareInvalid Acts of the Legislature Which Exceed the Authority Grantedby the People of the Commonwealth of Massachusetts9B. The Circumstances Surrounding the Enactment of the StatuteUndermine the Presumption of its Constitutionality 111. The Proponents of the Statute May Have Misled the Legislatureas to the Nature of the "Insurance Crisis"12C. Limits on the Right to Remedy and Limits on the Rights ofChildren Warrant Strict or Heightened Scrutiny Under EqualProtection14
 
D. The Medical Malpractice Statute of Repose and Shortened Statuteof Limitations for Children Should be Stricken as Violative of theRight to a Remedy Guaranteed by the Massachusetts Declaration ofRights and of Equal Protection and Due Process161. Medical Malpractice Statutes of Repose Violate the Due Processand Equal Protection Provisions of the Massachusetts Declarationof Rights18E. Children Enjoy the Same Rights to Protection and to LegalRedress for Wrongs Done them as Others Enjoy; Only the StrongestReasons, Grounded in Public Policy, Can Justify Limitation orAbolition of these Rights. No Public Policy Reasons Exist toJustify Depriving Children of their Rights to Remedy MedicalMalpractice19II. M.G.L. c. 231 sec. 60D DISCRIMINATES AGAINST VICTIMS OFMEDICAL MALPRACTICE IN VIOLATION OF THE GUARANTEE OFEQUAL PROTECTION29A. M.G.L. c. 231 Sec.60D Discriminates Against Victims of MedicalMalpractice30B. The Medical Malpractice Statute of Repose Should be Subject toHeightened Scrutiny30III. MEDICAL MALPRACTICE STATUTES OF REPOSE BEAR NO RATIONALRELATIONSHIP TO LEGISLATIVE GOALS33A. The Relationship Between the Classification and LegislativeGoals Must Be Rational Under the Circumstances in Which theStatute Will Operate33B. Even if the Court Applies the Most Lenient and DeferentialStandard to Legislation, that the Statute Bear a RationalRelationship to a Legitimate State Purpose it is Clear that theStatute of Repose Cannot Pass Constitutional Muster361. The Medical Malpractice Statute of Repose is not RationallyRelated to Promoting More Affordable Health Care to the Public,and Has Not Accomplished That Purpose. There is No RationalRelationship Between the Medical Malpractice Statute of Repose andthe Purported Goal of Affordable Health Care

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