In Massachusetts medical malpractice actions, the injured person must take extra steps by going before a tribunal before formally entering the circuit court process. The injured party’s case has to be approved by a tribunal primarily made up of members of the medical community. In its creation of these panels, the Massachusetts legislature set limits on what is considered in this forum. The legislature did not want to recreate the entire litigation process. To ensure that an injured party is filing a serious claim, the Commonwealth also requires the plaintiff to post a bond. To assist injured plaintiffs who are unable to pay, the legislature does allow the plaintiff to apply for a waiver of the bond and fees. The question of what is excluded and what is required in a medical malpractice tribunal review is found in a recent appellate decision (16-P-954).
In this case, the plaintiff alleged an out-patient addiction treatment center was negligent by failing to appropriately address his complaints of pain. Along with the filing of the case, the injured party filed an affidavit of indigency, asking the court to waive the filing fees. The injured party also sought funds to retain an expert witness to help with his action. The request for the expert funds was separate from the other motions, and it was not accompanied by its own motion or an explanation about the necessity of these fees.
For the tribunal, the injured man only submitted two handwritten pages with his allegations written out. These were not supported by a medical expert’s report. Without the affidavit of a medical expert supporting his claim, the tribunal ordered the plaintiff to post the statutory $6,000 bond. The injured man moved for a reduction, which was granted at $2,500. However, the injured man did not pay the reduced amount. The treatment center moved for a dismissal of the complaint, which was granted. The injured man appealed.
In its analysis, the Appeals Court first listed the many problems with the injured man’s appeal before attempting to address any substantive claims. The court noted the injured man did not attach copies of the important parts of the record. He also did not include an appendix of the proof he submitted to the tribunal, including a copy of the transcript and copies of the motions filed. The court pointed out that without the motions, they could not ascertain which errors the tribunal made. The lack of an opinion from an expert also hampered the injured man’s appeal because it prevented the appellate body from being able to determine if there was a legitimate question of liability appropriate for judicial inquiry.
The injured man alleged that he was not given a fair hearing. The injured man felt that his requests for extra funds, requests for an extension of time to file motions, and requests for discovery were erroneously denied. The Appeals Court did not agree. The court determined there was no abuse of discretion by the judge’s denial of discovery, since the plaintiff was already given a copy of his medical records. The court noted they could not determine if the records that were provided to the injured man were incomplete because the injured man failed to include his copy with his appeal. The incomplete record also prevented any analysis or ruling in the injured man’s favor regarding the requests for an extension of time and expert witness funds. The court said that even with a complete appellate record, the injured man’s sparse initial request for an expert was insufficient for analysis. The denial of a bond reduction and other claims were also deemed to be inadequate. The judgment of dismissal was affirmed.
This case demonstrates the need for experienced counsel at your side through every phase of a Massachusetts personal injury action. If you’ve suffered an injury from medical treatment, call the attorneys at Karsner & Meehan to discuss which avenues of legal relief are available to you at 508.822.6600.
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