Opinion
No. 15–P–1147.
07-28-2016
Maureen FIGUERADO v. STURDY MEMORIAL HOSPITAL & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Maureen Figuerado, appeals from a judgment of the Superior Court dismissing with prejudice her complaint alleging medical negligence against the defendants on grounds that she failed to comply with the requirements of G.L. c. 231, § 60B. In particular, the plaintiff maintains that the judge erred in determining that she failed to post the $6,000 statutory bond required by § 60B within the thirty-day period following the medical malpractice tribunal's finding that the plaintiff's offer of proof is not sufficient to raise a legitimate question as to the liability of the defendants. See Goldstein v. Barron, 382 Mass. 181, 182–183 (1980) (explaining thirty-day requirement for posting bond under § 60B ).
The bond requirement appears in the sixth paragraph of § 60B and reads as follows: “If a finding is made for the defendant or defendants in the case the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars in the aggregate secured by cash or its equivalent with the clerk of the court in which the case is pending, payable to the defendant or defendants in the case for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment. Said single justice may, within his discretion, increase the amount of the bond required to be filed. If said bond is not posted within thirty days of the tribunal's finding the action shall be dismissed.” G.L. c. 231, § 60B, as amended by St.1986, c. 351, § 21.
Background. The essential procedural facts are not in dispute. On November 22, 2013, following the filing and service of the complaint and answer in this case, a medical malpractice tribunal conducted a hearing, and reviewed the plaintiff's offer of proof to determine whether it was “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. On November 22, 2013, the clerk made an entry on the court docket that the tribunal had determined that the plaintiff's offer of proof was not sufficient to satisfy § 60B. On that date, notice of this docket entry was mailed to the parties. On December 23, 2013, the plaintiff deposited the sum of $6,000 with the clerk of the Superior Court. On December 30, 2013, the defendants moved to dismiss the complaint for failure to post the bond required by § 60B within thirty days of the date of the tribunal's finding (November 22, 2013). The plaintiff filed a written opposition. The judge conducted a hearing on the defendants' motion on February 20, 2014. The plaintiff did not appear at this hearing. The judge allowed the defendants' motion to dismiss and ordered that judgment enter for the defendants.
In order to satisfy § 60B, a plaintiff's offer of proof in a medical negligence case must establish that (1) “the defendant is a provider of health care as defined in G.L. c. 231, § 60B ”; (2) “the health care provider did not conform to good medical practice”; and (3) there was resulting damage. Goudreault v. Nine, 87 Mass.App.Ct. 304, 308 (2015) (quotation omitted). “Because the determination of sufficiency before a tribunal is a factual one, the tribunal's task is akin to a trial judge's evaluation of a motion for a directed verdict. The tribunal may not examine the weight or credibility of the evidence. Instead, it must view the evidence contained in the offer of proof in the light most favorable to the plaintiff.” Ibid. (quotation and citations omitted).
Discussion. In ordering that the plaintiff's complaint be dismissed for failure to post the $6,000 bond “within thirty days of the tribunal's finding,” G.L. c. 231, § 60B, the judge reasoned that since the plaintiff deposited her cash bond on the thirty-first day following the tribunal's adverse decision, December 23, 2013, she was required to demonstrate “excusable neglect,” Mass.R.Civ.P. 6(b)(2), 365 Mass. 747 (1974), for the one-day delay. The judge's reasoning was incorrect because she failed to consider that the thirtieth day following the tribunal's adverse decision fell on a Sunday, which had the effect of giving the plaintiff an additional day to file the bond. See Mass.R.Civ.P. 6(a), 365 Mass. 747 (1974) (in computing any time period governed by Rules of Civil Procedure, if last day “is a Saturday, a Sunday, or a legal holiday,” period continues to run “until the end of the next day that is not a Saturday, a Sunday, or a legal holiday”).
Conclusion. For the reasons stated, the judgment is vacated, and the case is remanded to the Superior Court for further proceedings not inconsistent with this memorandum and order.
The plaintiff also challenges the adverse decision by the tribunal on grounds that it did not adhere to the proper standard in concluding that her offer of proof was not sufficient. We agree with the defendants that the two-page expert letter from Dr. Hobaica was inadequate for several reasons. The expert letter does not indicate familiarity with the applicable standard of care governing the conduct of defendant Kelly, an emergency care physician who is not a radiologist, and appears to assume that the standard of care applicable to a radiologist also applies to a nonradiologist, emergency room physician. Furthermore, the expert letter assigns responsibility to Kelly for failing to comply with hospital protocols and for not notifying the plaintiff of the fact that after Kelly's diagnosis of a sprained ankle, later that day a radiologist made a diagnosis that her ankle was fractured. However, the plaintiff's offer of proof fails to establish that Kelly was ever made aware of the radiologist's contrary diagnosis.
So ordered.