Opinion
20-P-1221
07-26-2021
SYLVIA COLON[1] v. J. DIEGO LOZANO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this medical malpractice action, separate and final judgment entered dismissing the complaint against defendant J. Diego Lozano after a medical malpractice tribunal found that the plaintiff's offer of proof failed to raise a legitimate question as to his liability. The plaintiff appeals, arguing that the Superior Court judge erred by denying her motion to vacate the dismissal based on newly discovered evidence. We affirm.
Separate and final judgment also entered for defendant Ajit S. Puri. The plaintiff did not appeal from that judgment. The plaintiff's claims against Ajay K. Wakhloo are still pending in the Superior Court.
Background.
In July 2017 the plaintiff sent the defendants a claim letter under G. L. c. 231, § 60L, alleging, among other things, that Drs. Lozano and Ajay K. Wakhloo had negligently performed a medical procedure in February 2015, causing the plaintiff to suffer permanent nerve damage. The defendants sent a joint response to the claim letter in early December 2017. In the response the defendants acknowledged that "the procedure was performed by Dr. Lozano, under the supervision of Dr. Wakhloo."
The plaintiff commenced this action in late December 2017. Her complaint included an allegation that "J. Diego Lozano, M.D. and Ajay K. Wakhloo, M.D. performed" the procedure. Dr. Lozano's and Dr. Wakhloo's respective answers, filed in July 2018, admitted this allegation.
After the matter was referred to a medical malpractice tribunal in October 2019, the plaintiff filed an offer of proof, which included expert opinions from Drs. Jay B. Krasner and Daniel Cousin. Neither expert offered an express opinion as to whether Dr. Lozano deviated from the standard of care. The sole mention of Dr. Lozano in either opinion was Dr. Krasner's observation that the procedure was performed "by Dr. Ajay K. Wakhloo, . . . assisted by Dr. J. Diego Lozano (a fellow)." In January 2020 the tribunal found that the offer of proof was insufficient "to raise a legitimate question of liability appropriate for judicial inquiry" as to Dr. Lozano.
After the plaintiff failed to post the statutorily required bond in the Superior Court, see G. L. c. 231, § 60B, Dr. Lozano moved to dismiss the claims against him. The plaintiff did not oppose the motion, which the judge allowed on April 8, 2020. Approximately three weeks later, the plaintiff served what she called a motion under Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974), or alternatively under Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), to "vacate the judgment" and to "reinstate" the case as to Dr. Lozano (motion to vacate). The plaintiff argued that such relief was warranted because "the record was unclear until April of 2020 as to which doctor performed the procedure." Although the plaintiff did not elaborate on the basis for this statement, she attached as an exhibit Dr. Wakhloo's April 22, 2020, interrogatory answers, in which he stated: "I did not perform the procedure at issue. Rather, it was performed by Dr. Lozano under my supervision." In June 2020 the judge denied the plaintiff's motion to vacate, finding that the record did not support her claim that she was unaware until April 2020 that Dr. Lozano performed the procedure, and that "reinstatement . . . would undermine the tribunal's screening role and the requirements of posting a bond after an adverse tribunal decision." After separate and final judgment entered, the plaintiff filed a timely motion to reconsider, in which she expressly relied on Dr. Wakhloo's interrogatory answer. The judge denied the motion, and the plaintiff filed a timely appeal.
Discussion.
Under 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 the commonwealth . . . and an attorney authorized to practice law in the commonwealth." The tribunal is charged with determining whether the plaintiff's offer of proof "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." G. L. c. 231, § 60B. If 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] . . . with the clerk of the court in which the case is pending." Id. The judge must dismiss the case if the plaintiff does not post the bond within thirty days of the tribunal's finding. See Ruggiero v. Giamarco, 73 Mass.App.Ct. 743, 745 (2009). The plaintiff "may then appeal from the dismissal" but "has no further recourse if [the] claim of tribunal error is decided adversely to [the plaintiff] on appeal." Id. at 745-746.
Here, as the plaintiff made clear at oral argument, she does not challenge the tribunal's underlying determination that her offer of proof was insufficient to allow the claims against Dr. Lozano to proceed without the posting of a bond. Her 4 argument, rather, is that the judge should have vacated the dismissal and reinstated the claims against Dr. Lozano based on newly discovered evidence, i.e., Dr. Wakhloo's April 22, 2020, interrogatory answer. We disagree for two reasons. First, the judge lacked the statutory authority to grant the relief requested in the plaintiff's motion to vacate. Although judges "may reduce the amount of the bond" if the plaintiff is indigent, they "may not eliminate the requirement thereof" and "shall" dismiss the case if the "bond is not posted within thirty days of the tribunal's finding." G. L. c. 231, § 60B. See Polanco v. Sandor, 480 Mass. 1010, 1010-1011 (2018); Ruggiero, 73 Mass.App.Ct. at 745-746. Thus, whatever mechanism exists for a case to be returned to the tribunal upon discovery of new evidence -- an issue that has not been briefed by either party -- the judge could not simply bypass the tribunal and reinstate the claims against Dr. Lozano, as requested by the plaintiff. We agree with the judge that such relief would be contrary to the tribunal's screening role and the bond requirement, which the Legislature imposed "to 'discourage frivolous medical malpractice claims.'" Polanco, supra at 1011, quoting Paro v. Longwood Hosp., 373 Mass. 645, 647 (1977).
Second, even assuming that the motion to vacate was procedurally proper, the judge did not err in concluding that there was no record support for the plaintiff's claim that she did not know until April 2020 that Dr. Lozano performed the procedure. The procedure note, dated February 2015, identifies the "[o]perator[s]" as "Dr. J. Diego Lozano," "Fellow," and "Dr. Ajay K. Wakhloo," "Attending." The plaintiff's July 2017 claim letter and the defendants' December 2017 response likewise identify Drs. Lozano and Wakhloo as the operators, and Dr. Lozano admitted in his July 2018 answer to the complaint that he performed the procedure. The record thus demonstrates that the plaintiff had knowledge of Dr. Lozano's involvement well before April 2020. The plaintiff fails to explain how Dr. Wakhloo's later interrogatory answer that the procedure "was performed by Dr. Lozano under [his] supervision" bears on the state of her knowledge as to Dr. Lozano.
For these reasons the judge did not err in denying the plaintiff's motion to vacate or her motion to reconsider. The separate and final judgment for Dr. Lozano is, accordingly, affirmed.
So ordered.
The panelists are listed in order of seniority.