Wittkowski v. Spencer et al

Filing 130

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing,1) The motion of the defendants Deiner, Andrade, Groblewski and Levine for referral to medical malpractice tribunal(Docket No. 113) is ALLOWED and2) the Clerk of Court is directed to refer plaintiffs medical malpractice claim to the Massachusetts Superior Court Department of the Trial Court for the purpose of convening a medical malpractice tribunal pursuant to M.G.L. c. 231, § 60B. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

WITTKOWSKI,
Plaintiff,
v.
SPENCER, ET AL.,
Defendants.

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Civil Action No.
14-11107-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of the purportedly inadequate
medical treatment of pro se plaintiff Jojo Wittkowski
(“plaintiff”), who is currently incarcerated at Old Colony
Correctional Center in Bridgewater, Massachusetts.
I.

Background
Plaintiff is a transgender (male to female) woman.

In

March, 2014, she filed a complaint alleging that, by declining
to treat her gender identity disorder, defendants, who are
healthcare personnel employed by the Massachusetts Department of
Corrections, 1) violated the Eighth and Fourteenth Amendments
under 42 U.S.C. § 1983 and 2) committed “medical negligence and
malpractice” in violation of Massachusetts law.
In September, 2015, plaintiff submitted an amended
complaint that identified nine defendants.

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Since then, claims

against four defendants have been dismissed by this Court.

The

remaining defendants are Steven Levine, Robert Deiner, Joel
Andrade, Neal Norcliffe and Thomas Grobleski.
In December, 2016, Deiner, Andrade, Groblewski and Levine
(collectively, “the subject defendants”) filed a joint motion to
refer plaintiff’s medical malpractice claim to a medical
malpractice tribunal.

Plaintiff opposes that motion but, for

the following reasons, it will be allowed.
II.

Motion for Referral to Medical Malpractice Tribunal
A. Legal Standard

Massachusetts law provides a screening mechanism for
medical malpractice claims.

It requires that, before proceeding

in court, such claims
shall be heard by a tribunal . . . [which] shall determine
if the evidence presented 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.
M.G.L. c. 231, § 60B.

If the tribunal finds in favor of the

defendant, the plaintiff is permitted to pursue the case in
court only after satisfying a $6,000 bond requirement. Id.
Referring Massachusetts state law claims to a medical
malpractice tribunal is appropriate when such claims are in
federal court pursuant to either diversity or supplemental
jurisdiction. See Feinstein v. Massachusetts Gen. Hosp., 643
F.2d 880, 883 (1st Cir. 1981) (holding that medical malpractice
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claims under Massachusetts law that are in federal court based
on diversity jurisdiction must be referred to a medical
malpractice tribunal); Turner v. Sullivan, 937 F. Supp. 79, 80
(D. Mass. 1996) (finding that medical malpractice claims under
Massachusetts law that are in federal court under supplemental
subject matter jurisdiction must be referred to a medical
malpractice tribunal).
B. Analysis
Pursuant to M.G.L. c. 231, § 60B, the subject defendants
move for the Court to refer plaintiff’s medical malpractice
claims to the Massachusetts Superior Court Department of the
Trial Court so that it may convene a medical malpractice
tribunal.

Plaintiff opposes that motion on the grounds that

1) this Court denied defendants’ motion to dismiss the claim at
issue and 2) she is indigent and thus, even if the subject
defendants prevail in the tribunal, unable to pay the required
bond.
The contention of the subject defendants that plaintiff’s
medical malpractice claim must be referred to a medical
malpractice tribunal is compelling.

That claim is properly in

this Court under supplemental jurisdiction stemming from
plaintiff’s 42 U.S.C. § 1983 claims. 28 U.S.C. § 1367(a).
Accordingly, it is appropriate to refer it to a medical
malpractice tribunal. Turner, 937 F. Supp. at 80.
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Moreover, plaintiff’s objections to such a referral are
unavailing.

First, her contention that the denial of

defendants’ motion to dismiss means she has stated a plausible
malpractice claim is mistaken.

Referral to the tribunal is

required for all medical malpractice claims under Massachusetts
law and there is no exception for claims that have survived a
motion to dismiss. M.G.L. c. 231, § 60B.

Furthermore, unlike

the standard for dismissal, the tribunal standard is focused on
the medical viability of plaintiff’s claim. Id.; see also Doyle
v. Shubs, 717 F. Supp. 946, 947 (D. Mass. 1989), aff'd, 905 F.2d
1 (1st Cir. 1990).
Second, plaintiff’s contention that she would be unable
to pay the bond if the tribunal ruled in favor of defendants
does not foreclose the tribunal from hearing her claim.

If the

tribunal determines that the purported malpractice is merely an
unfortunate medical result, plaintiff can move for the bond to
be reduced. See Feinstein v. Massachusetts Gen. Hosp., 643 F.2d
880, 889–90 (1st Cir. 1981); Rua v. Glodis, No. 10-cv-40251-FDS,
2012 WL 2244817, at *3 (D. Mass. June 14, 2012).

Therefore,

because Massachusetts law requires that plaintiff’s medical
malpractice claim be heard by a tribunal, the subject
defendants’ motion will be allowed.

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ORDER
In accordance with the foregoing,
1) The motion of the defendants Deiner, Andrade, Groblewski
and Levine for referral to medical malpractice tribunal
(Docket No. 113) is ALLOWED and
2) the Clerk of Court is directed to refer plaintiff’s
medical malpractice claim to the Massachusetts Superior
Court Department of the Trial Court for the purpose of
convening a medical malpractice tribunal pursuant to
M.G.L. c. 231, § 60B.

So ordered.

/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated April 20, 2017

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