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Joslyn v. Chang11/21/2005
in turn contribute to higher insurance premiums and, finally, to curtailment of health care services," was "better addressed to the Legislature, which , of course, free to make a contrary reconciliation of the conflicting policies involved or to place an outside limit on the time for bringing a malpractice action" (emphasis added). Id. In this regard, we referred to the laws of several other States that had done precisely that. Id. at 619 n.12.
The first legislative proposals concerning addition of a statute of repose appeared in 1981 and were referred to committee for study. See 1981 Senate Doc. Nos. 1762, 2030; 1981 Senate J. 714. This recurred each year through the General Court's 1985 session. See, e.g., 1985 Senate Doc. Nos. 1068, 1766, 2293; 1985 Senate J. 524. Enactment appears to have been stymied during this period by unfavorable reports of committee, see, e.g., 1984 Senate J. 332, and of a special commission created in 1975 to address a "crisis . . . in Massachusetts medical professional liability insurance." 1986 House Doc. No. 5355, at 5. The commission, in particular, reported in 1983 that "the decision in Franklin v. Albert has caused some anxiety about possible increases in malpractice actions resulting from . . . the 'discovery rule' . . . t present [the commission] possesses no information suggesting that such an increase has occurred or will occur." 1983 House Doc. No. 5980, at 17.
By 1986, however, the commission's recommendation had changed. Now, it reported that a crisis existed concerning "extraordinary premium increases" for medical malpractice insurance, see 1986 House Doc. No. 5355 at 20, and elaborated that, " or reasons still unexplained," medical malpractice claims increased 50% in the second half of 1981. Id. at 6. Premiums soared 38.9% in 1982. For the 1983 to 1984 period, the joint underwriting association (JUA), an entity created by statute in 1975 to write medical malpractice insurance policies, recommended an astonishing 189.2% increase. Id. at 7. See St. 1975, c. 362, § 6 (creating JUA). The special commission, as well as other interested groups, appeared to believe that the Franklin decision was at least a factor in fomenting this crisis. 1986 House Doc. No. 5355, at 6.
The statute of repose in § 4 was adopted in the wake of this report. See St. 1986, c. 351, § 30. The relevant language was identical to the 1981 proposals, with two modifications. First, the term of the statute was different. Early proposals called for a three or four-year statute of repose. See, e.g., 1981 Senate Doc. Nos. 1762, 2030. Instead, the House initially approved a five-year period, 1986 House Doc. No. 5612, § 19, and the Senate endorsed a ten-year period, 1986 Senate Doc. No. 2030, § 30. The final seven-year period reflected a compromise. See 1986 House Doc. No. 6172, § 30. Second, the original 1981 proposal contained no exceptions while the version enacted in 1986 expressly excluded actions "based upon the leaving of a foreign object in the body." St. 1986, c. 351, § 30.
The context of the enactment of the provision is also instructive. The statute of repose was not passed in isolation, but as "part of a larger, long-term effort to curb the cost of medical malpractice insurance and keep such insurance available and affordable," Harlfinger v. Martin, supra at 43, thereby adjusting the economics of the practice and consumption of medical services in the Commonwealth. See 1987 House Doc. No. 5262, at 6-12. It was posited that the initiative would ensure the continued affordability and quality of medical care for the benefit of all citizens of the Commonwealth. For example, the act imposed additional reporting requirements for misconduct in the medical commu
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