Opinion
No. 15–P–977.
07-26-2016
Kenneth I. LAPRADE v. COOLEY DICKINSON HOSPITAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Superior Court summary judgment dismissing counts I (civil rights violations under G.L. c. 12, § 11I ), III (false imprisonment), and V (punitive damages) of his amended complaint against the defendant. He claims that the defendant's motion for summary judgment was filed only for harassment and delay; that the granting of summary judgment deprived him of his right to a jury trial; and that disputed facts exist, which can only be resolved through a trial. We affirm.
Counts II (medical malpractice) and IV (circadian rhythm sleep disorder) were dismissed following an adverse medical malpractice tribunal finding, and the plaintiff's failure to post a bond pursuant to G.L. c. 231, § 60B. [SA 86] The plaintiff does not raise any issues on appeal as to the dismissal of those counts.
Background. On September 25, 2010, the eighty-two year old plaintiff fell and was unable to get up. He was taken to Cooley Dickinson Hospital (CDH) by the fire department where he was admitted and treated by hospital staff. He remained at CDH until he was discharged to Kindred Hospital Park View on October 11, 2010. He remained at Kindred Hospital Park View until November 4, 2010.
In his complaint, the plaintiff alleged that CDH kept him “totally sedated” and held him against his will. CDH moved for summary judgment and, in support thereof, attached copies of the plaintiff's medical records, which described CDH's course of treatment and contained entries recounting discussions with the plaintiff and his wife about his discharge and plans for postdischarge care. CDH also relied on the plaintiff's deposition testimony wherein he admitted that he had never asked to be discharged. The plaintiff filed no evidentiary materials in opposition to the motion for summary judgment that substantiate his claims. Instead, he argued that the medical records should not be considered because the factual assertions taken from his medical records were not in affidavit form. He filed no affidavit with his opposition.
The plaintiff testified that he could not ask to be discharged because he “was in a coma.”
See Mass.R.Civ.P 56(e), 365 Mass. 825 (1974) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegation or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him”).
Discussion. The plaintiff's brief does not rise to the level of appellate argument as it cites to no case law, statutes, or other legal authority. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Accordingly, the issues are deemed waived. Tobin v. Commissioner of Banks, 377 Mass. 909, 909 (1979).
The plaintiff also failed to comply with Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997), as he filed an appendix that omitted relevant pleadings and documents from the summary judgment record. See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) (failure to include memorandum in appendix precluded review of argument raised solely therein); Davis v. Tabachnick, 425 Mass. 1010 (1997) (pro se parties held to same standard as those represented by counsel). We note, however, that CDH subsequently provided those materials to this court in its “Supplemental Appendix.”
Even assuming, arguendo, that the plaintiff had properly raised and addressed the issues on appeal, our review of the record confirms that appellate relief is not warranted. As to the false imprisonment claim, there was no evidence in the record that CDH intended to confine the plaintiff against his will, no evidence of any request or attempt by the plaintiff or his family to leave CDH (while he continued to receive medical treatment), and, in light of the plaintiff's testimony that he was in a coma, there was no evidence that he was conscious of the alleged confinement. See Restatement (Second) of Torts § 35 (1965) (“An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it”). As to the civil rights claim under G.L. c. 12, § 11I, the summary judgment record contains no evidence of threats, intimidation, or coercion by CDH. See Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 762–763 (2014). Finally, punitive damages are not authorized for the claims asserted by the plaintiff. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 856 n. 20 (1983) (“Under Massachusetts, law, punitive damages may be awarded only by statute”).
Accordingly, we affirm the judgment.
So ordered.