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SJC-12389

              DOROTEO POLANCO   vs.   ANDRAS SANDOR.


                        August 13, 2018.


                   Medical Malpractice, Bond.


     The plaintiff, Doroteo Polanco, commenced this medical
malpractice action pursuant to G. L. c. 231, § 60B, against the
defendant, Andras Sandor, and two others.1 After a medical
malpractice tribunal concluded that there was not evidence
"sufficient to raise a legitimate question of liability
appropriate for judicial inquiry," as required by the statute,
Polanco filed a surety bond in the amount of $6,000 so that he
could pursue his claim "through the usual judicial process."
See G. L. c. 231, § 60B. Sandor filed a motion to strike the
surety bond and to dismiss the complaint. A judge in the
Superior Court allowed the motion to strike on the basis that a
surety bond does not satisfy the statutory obligation to file
"bond in the amount of [$6,000] in the aggregate secured by cash
or its equivalent." G. L. c. 231, § 60B. The judge then
reported his ruling on the issue to the Appeals Court pursuant
to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996),
and stayed the matter in the trial court. We transferred the
case to this court on our own initiative.

     Pursuant to G. L. c. 231, § 60B, "[e]very action for
malpractice, error or mistake against a provider of health care
shall be heard by a tribunal consisting of a single justice of
the superior court, a physician licensed to practice medicine in

    1  According to the trial court docket, stipulations of
dismissal have entered as to the plaintiff's claims against the
two other defendants, Khaled A. Yehia and Hallmark Health
System, Inc. They are not a part of this appeal.
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the commonwealth . . . and an attorney authorized to practice
law in the commonwealth." At the hearing, the plaintiff "shall
present an offer of proof" and the tribunal "shall determine if
the evidence presented if properly substantiated is sufficient
to raise a legitimate question of liability appropriate for
judicial inquiry or whether the plaintiff's case is merely an
unfortunate medical result." Where, as here, the tribunal finds
for the defendant, "the plaintiff may pursue the claim through
the usual judicial process only upon filing bond in the amount
of [$6,000] in the aggregate secured by cash or its equivalent,"
which will be "payable to the defendant . . . for costs
assessed, including witness and experts fees and attorneys fees
if the plaintiff does not prevail in the final judgment." The
presiding judge may, in his or her discretion, increase the
amount of the bond, or, if a determination is made that the
plaintiff is indigent, the judge may reduce, but not eliminate
all together, the amount of the bond.2

     General Laws c. 231, § 60B, was enacted in 1975 to help
"ensure the continued availability of medical malpractice
insurance at a reasonable cost," and to do so by imposing a
screening procedure and a bond requirement to "discourage
frivolous medical malpractice claims." Paro v. Longwood Hosp.,
373 Mass. 645, 647, 651 (1977). See, e.g., Faircloth v.
DiLillo, 466 Mass. 120, 124 (2013) (discussing purpose of bond
requirement). The Legislature's intent in enacting § 60B

    "was to discourage malpractice litigation that is
    inappropriate for judicial resolution either because the
    litigation is frivolous or because, even if the plaintiff
    is acting in good faith, his alleged injury is simply an
    'unfortunate medical result' for which the defendant should
    not be held accountable."

McLaughlin, A Look at the Massachusetts Malpractice Tribunal
System, 3 Am. J.L. & Med. 197, 200 (1977).

     With that in mind, we turn to the question before us:
whether a surety bond in the amount of $6,000 (which, as best we
can tell from the record before us, Polanco obtained for $120)
satisfied the requirement of the statute that a plaintiff
wishing to proceed after a tribunal has found in favor of a

    2  In addition to moving to strike the surety bond and
dismiss the complaint, the defendant here also moved to increase
the amount of the bond. The judge denied that part of the
motion.
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defendant must file "bond in the amount of [$6,000] in the
aggregate secured by cash or its equivalent." We conclude that
it does not.

     Where an accepted purpose of the statute is to discourage a
plaintiff from pressing forward with what a tribunal has
determined to be unmeritorious claims, and where, to that end,
the statute requires a bond in the amount of $6,000 in "cash or
its equivalent," allowing a plaintiff to proceed after paying
only a modest sum (here, $120) rather than the statutorily-
prescribed $6,000 would not accomplish the statute's objective.
Indeed, Polanco himself has failed to set forth any meaningful
argument to support his position that using a surety bond is
adequate. The argument section of his brief includes but one
paragraph that states, in its entirety:

    "$6000 = $6000. A surety bond in the amount of $6000 is
    equivalent to $6000. The legislature chose to add the
    words 'or its equivalent' to the subject statute. The
    basic tenant [sic] of statutory interpretation is simply to
    give the legislature[']s word[s] their ordinary meaning.
    Clearly the legislature contemplated an alternative to cash
    to satisfy the posting requirement under G. L. c. 231,
    [§] 60B. The purpose of G. L. c. 231, [§] 60B, is not
    punitive."

That the Legislature contemplated an alternative to cash does
not necessarily mean, however, that a surety bond will suffice,
at least in the context presented here.3

     Polanco's point -- that a surety bond in the amount of
$6,000 "is equivalent to $6000" -- arguably might be accurate if
one were to look at the statute solely from a defendant's
perspective; should a plaintiff lose in the trial court (thus
rendering the $6,000 available to the defendant for trial costs,
including attorney's fees) it may not matter whether the
defendant is compensated in cash or by a professional surety
with a bond. Compensation is not the only objective of the
statute, however, nor is it even the dominant objective. As our
cases state, a principal purpose of the statute is to deter
plaintiffs from going forward with unmeritorious claims. From
that perspective, a $6,000 surety bond that cost a plaintiff

    3   We need not here decide what, specifically, constitutes
the "equivalent" of cash -- e.g., a certified check, a money
order, personal property. We merely conclude that a surety bond
does not.
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$120 is certainly not equivalent to $6,000 because it does
little to accomplish the Legislature's objective. Allowing a
plaintiff to proceed on something quite less than $6,000
effectively ignores the deterrence intent of the statute.

     We do agree with Polanco on one point -- that the purpose
of the bond requirement is not punitive. The point is not to
punish a plaintiff; the point is to discourage unmeritorious
claims and to compensate a defendant for costs should the
plaintiff's claims ultimately fail. That the bond requirement
is not punitive does not, however, somehow render a surety bond
equivalent to cash (and, again, Polanco has given us no legal
argument to support his position).4

     For the reasons set forth herein, we conclude that a surety
bond in the face amount of $6,000 is not the "equivalent" of
$6,000 in cash for purposes of G. L. c. 231, § 60B. The order
of the Superior Court judge allowing the defendant's motion to
strike the surety bond is therefore affirmed.

                                   So ordered.


     Richard Sheehan for the plaintiff.
     Allyson N. Hammerstedt for the defendant.




     4 If the Legislature had intended a surety bond to suffice
for purposes of G. L. c. 231, § 60B, it could easily have
included language to that effect in the statute. Cf.
Commonwealth v. Ray, 435 Mass. 249, 258 (2001) (concluding, in
criminal bail context, that under provision in G. L. c. 276,
§ 58, stating that defendant required to post cash bail "shall
be allowed to provide an equivalent amount in a surety company
bond," "a surety bond set at an amount ten times the amount of
[the] cash bail is equal in effect to that cash bail").
