Horan et al v. Cabral et al
Filing
49
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Defendants Naphcare, Inc. and Dr. James Cheverie's Motion for Referral to a Medical Malpractice Tribunal (Docket Entry # 21 ). The motion to refer the negligence and medical malpractice claims to Massachusetts Superior Court to convene a medical malpractice tribunal (Docket Entry # 21 ) is ALLOWED. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN HORAN,
Plaintiff,
v.
CIVIL ACTION NO.
16-10359-MBB
ANDREA CABRAL, et al.,
Defendants.
MEMORANDUM AND ORDER RE:
DEFENDANTS NAPHCARE, INC. AND DR. JAMES CHEVERIE’S
MOTION FOR REFERRAL TO A MEDICAL MALPRACTICE TRIBUNAL
(DOCKET ENTRY # 21)
May 11, 2018
BOWLER, U.S.M.J.
Defendants Naphcare, Inc. (“Naphcare”) and James Cheverie,
M.D. (“Dr. Cheverie”) (collectively:
“defendants”) seek to refer
the negligence and medical malpractice claims to Massachusetts
Superior Court to convene a medical malpractice tribunal.
(Docket Entry ## 21, 22, 48).
Plaintiff John Horan (“plaintiff”)
submits that defendants waived their right to proceed before a
tribunal by not seeking reconsideration of the court’s October
2016 denial of the motion (Docket Entry # 21) without prejudice
or raising the issue thereafter until a December 18, 2017
scheduling conference.
(Docket Entry # 46).
BACKGROUND
The amended complaint seeks damages for a personal injury
plaintiff sustained during his incarceration at the Suffolk
County House of Corrections (“SCHOC”).
(Docket Entry # 29, ¶ 1).
The claims in the eight-count amended complaint pertain to
inadequate medical treatment that plaintiff received during his
incarceration at SCHOC.
(Docket Entry # 29).
Prior to his
December 2012 incarceration at SCHOC, plaintiff suffered from
osteomyelitis and received intravenous antimicrobial therapy
administered through a peripherally inserted central catheter
(“PICC line”).
(Docket Entry # 29, ¶¶ 14-15, 17, 19).
He
continued to suffer from the condition throughout his
incarceration at SCHOC.
care at SCHOC.
Dr. Cheverie oversaw plaintiff’s medical
(Docket Entry # 29).
During plaintiff’s
incarceration, Naphcare was under a contract to provide medical
services to SCHOC.
(Docket Entry ## 29, 30, ¶¶ 9).
Against the recommendation of George Abraham, M.D. (“Dr.
Abraham”), the physician who treated plaintiff before he entered
SCHOC, Dr. Cheverie determined that plaintiff did not need the
PICC line and could instead receive oral antibiotics for the
condition.
(Docket Entry # 29, ¶ 21).
Upon the removal of the
PICC line in January 2013, plaintiff’s condition worsened
ultimately leading to the amputation of his right, second toe.
(Docket Entry # 29, ¶¶ 25, 29, 32).
Plaintiff filed this action in February 2016 and, after
securing an extension of time, defendants filed an answer on June
29, 2016.
On July 19, 2016, defendants filed the motion for a
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referral of the claims to Massachusetts Superior Court.
On
August 3, 2016, plaintiff filed a notice assenting to the motion.
On October 12, 2016, the court denied the motion to transfer
without prejudice, allowed a motion to amend the complaint, and
instructed plaintiff to file the amended complaint.
The court
also stated it “will first address the federal constitutional and
statutory claims only.”
(Docket Entry # 28) (emphasis added).
More than two months later, plaintiff filed the amended
complaint in early January 2017.
It sets out various civil
rights and constitutional claims under 42 U.S.C. § 1983 and
Massachusetts General Laws chapter 12, section 11I in counts I,
II, and III.
The remaining claims consist of medical malpractice
(Count IV), negligence (Count V), negligent infliction of
emotional distress (Count VI), intentional infliction of
emotional distress (Count VII), and assault and battery (Count
VIII).
In late January 2017, defendant Andrea Cabral (“Cabral”),
Suffolk County Sheriff during the relevant time period, filed a
motion to dismiss the amended complaint.
In an effort to
progress the case, defendants’ counsel telephoned the court in
late August 2017 inquiring about the status of the motion to
dismiss.
(Docket Entry # 48-1).
On September 29, 2017, the
court allowed the motion, dismissed Cabral, and inadvertently
closed the case.
On November 14, 2017, defendants’ counsel
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contacted the court about the closure and requested a status
conference.
(Docket Entry # 48-1).
A few days later, the court
reopened the case and scheduled the December 18, 2017 scheduling
conference for the remaining parties.
On December 13, 2017, the
remaining parties, including defendants, filed a joint statement
setting out a proposed discovery schedule pursuant to LR. 16.1.
The next day, defendants’ counsel advised plaintiff’s counsel
that she anticipated renewing the motion to refer the negligence
and medical malpractice claims to a tribunal at the scheduling
conference and, accordingly, did not wish to cancel the
conference in the event the parties consented to proceed before a
magistrate judge.
(Docket Entry # 48-1).
At the December 18,
2017 initial scheduling conference, the court adopted the
proposed schedule.
During the conference, defendants renewed the
motion to refer the claims to a tribunal.
(Docket Entry # 48-1).
On the same day, the parties consented to the jurisdiction of
this court.
On March 16, 2018, this court set a status conference.
At
the April 26, 2018 status conference, defendants again renewed
the motion to refer the aforementioned claims to a tribunal.
(Docket Entry # 47).
DISCUSSION
Defendants argue that referral of the negligence and medical
malpractice claims to a tribunal is mandatory under state law.
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(Docket Entry ## 22, 48).
Plaintiff contends that defendants
waived their right to proceed before a tribunal based on their
inaction.
(Docket Entry # 46).
Massachusetts law mandates a referral of all “action[s] for
malpractice, error or mistake,” Mass. Gen. Laws ch. 231, § 60B
(“section 60B”), to a medical malpractice tribunal, including
claims in federal court pursuant to diversity or supplemental
jurisdiction.
See Wittkowski v. Spencer, 249 F. Supp. 3d 582,
583 (D. Mass. 2017); see generally Washington v. Gagliani, 75
N.E.3d 582, 582-83 (Mass. 2017).
In the case at bar,
jurisdiction is grounded on a federal question with supplemental
jurisdiction over the state law claims.
(Docket Entry ## 1, 29,
¶¶ 5); 28 U.S.C. §§ 1331, 1367(a); Municipality of Mayaguez v.
Corporacion Para el Desarrollo del Oeste, Inc., 726 F.3d 8, 13
(1st Cir. 2013) (“‘federal-question jurisdiction . . . is invoked
by and large by plaintiffs pleading a cause of action created by
federal law,’ such as an action brought under 42 U.S.C. § 1983”).
Section 60B’s purpose “is to screen complaints in order ‘to
discourage frivolous claims whose defense would tend to increase
premium charges for medical malpractice insurance.’”
Ruggiero v.
Giamarco, 901 N.E.2d 1233, 1237 (Mass. App. Ct. 2009).
The
tribunal accomplishes this goal by “‘distinguishing between cases
of tortious malpractice and those involving “merely an
unfortunate medical result.”’”
Vasa v. Compass Medical, P.C.,
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921 N.E.2d 963, 966 (Mass. 2010).
For actions falling into the
latter category when the tribunal finds in the defendant’s favor,
the plaintiff must post a bond to proceed “through the usual
judicial process.”
Mass. Gen. Laws ch. 231, § 60B; see also Rua
v. Glodis, Civil Action No. 10-40251-FDS, 2012 WL 2244817, at *3
(D. Mass. June 14, 2012) (noting that “‘a plaintiff may, in
effect, “waive” the tribunal by declining to present an offer of
proof,’ and thus ‘assume[ ] voluntarily the financial burden of
the bond’”).
“The tribunal requirement applies to all treatment related
claims, whether in tort, in contract, or under G.L. c. 93A.”
Ruggiero, 901 N.E.2d at 1237 (emphasis added).
“[T]he
defendant’s status as a health care provider” and the subject
matter of the claim, namely, one “which directly implicate[s] the
professional judgment or competence of a [health care] provider,”
determines whether “tribunal screening is required.”
Vasa, 921
N.E.2d at 967; accord Koltin v. Beth Israel Deaconess Medical
Ctr., 817 N.E.2d 809, 811 (Mass. App. Ct. 2004).
The negligence
and medical malpractice claims uniformly implicate the
professional judgment of Dr. Cheverie, who rendered medical
treatment to plaintiff for his osteomyelitis during his
incarceration at SCHOC.
More specifically, they involve Dr.
Cheverie’s decision to remove the PICC line and treat plaintiff
with oral antibiotics.
The decision purportedly contravened the
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recommendations of Dr. Abraham.
Overall, the claims directly
concern the professional judgment of Dr. Cheverie, a health care
provider within the meaning of section 60B.
ch. 231, § 60B.
See Mass. Gen. Laws
Accordingly, section 60B requires a referral to
a medical malpractice tribunal.
As pointed out by plaintiff, however, Rule 73 of the Rules
of Superior Court requires a party to file a demand for a
tribunal within 30 days of filing an answer.
The rule further
provides that, “Any defendant’s failure to file a timely Demand
for Tribunal shall waive the defendant’s right to a tribunal.”
Rule 73, Rules of Superior Court.
Plaintiff nevertheless
acknowledges that the rule “applies only to cases filed after
January 1, 2018” (Docket Entry # 46), i.e., not this case.
More broadly, “[w]hen a party persistently sleeps upon its
rights, waiver almost inevitably results.”
Holyoke, 362 F.3d 1, 6 (1st Cir. 2004).
Bennett v. City of
Consequently, a waiver
may occur if a party raises an issue for the first time in a
motion to reconsider, see Jennings v. Jones, 587 F.3d 430, 444
(1st Cir. 2009) (“Jennings did not present the argument to the
district court until his motion to reconsider the court’s
decision to grant a new trial, and it is waived”), although even
then a court may overlook the waiver.
See, e.g., Gent v. CUNA
Mutual Ins. Society, 611 F.3d 79, 83-84 n.4 (1st Cir. 2010)
(overlooking waiver even though the plaintiff raised the argument
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“for the first time in her motion to reconsider”).
In fact, in
circumstances somewhat analogous to the case at bar, the First
Circuit in Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1 (1st Cir.
2012), determined “that the insurers did not ‘intentionally
relinquish a known right’” and thereby waive the issue of
production of documents by not raising it again during trial
after the court denied a motion to compel documents during
discovery and after the court allowed a motion to quash subpoenas
seeking a subset of the documents during trial inasmuch as the
court indicated “‘it would rethink it as we go along.’”
Id. at
17 n.14.
Here, defendants set out the argument regarding the required
referral to a tribunal in their original motion.
The court
denied that motion without prejudice, meaning, it did not
foreclose the ability of defendants to renew the motion.
court did not set a time limit to renew the motion.
The
In fact,
there were no deadlines for the filing of motions at the time.
Defendants reasserted and renewed the motion 14 months later.
During the interim, the court inadvertently closed the case for
approximately two months and defendants’ counsel contacted the
court on two occasions seeking to advance the progress of the
case.
Under the circumstances, defendants’ delay did not waive
their statutory right to proceed before a medical malpractice
tribunal.
See generally Rodriguez v. Transnave Inc., 8 F.3d 284,
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290 (5th Cir. 1993) (“two-year delay in urging its motion did not
implicitly waive its foreign sovereign immunity”).
Finally, “[a]ny undue delays” in this action resulting from
the referral “can be ameliorated by an order allowing discovery
to proceed.”
Joseph v. Sweet, 125 F. Supp. 2d 573, 578 (D. Mass.
2000); see Ward v. Schaefer, Civil Action No. 16-12543-FDS, 2018
WL 1096829, at *4 (D. Mass. Feb. 27, 2018) (noting referral of
the “case to the Superior Court to convene a medical malpractice
tribunal” and absence of stay of discovery); cf. Rua v. Glodis,
2012 WL 2244817, at *5 (transferring medical malpractice claims
brought against one defendant to medical malpractice tribunal and
staying “discovery concerning the claims against” that defendant
pending result of tribunal); see also Heintz v. Amaral, No.
040368A, 2004 WL 1690389, at *1 (Mass. Super. Ct. July 15, 2004)
(noting different approaches to staying discovery and that
tribunal hearing “‘ordinarily precedes discovery’” although
“there is nothing contained in the tribunal statute that relieves
the defendant from” providing discovery prior to tribunal
hearing); see generally Dyer v. City of Boston, Civil Action No.
17-11452-DJC, 2018 WL 1513568, at *7 (D. Mass. Mar. 27, 2018)
(federal and state constitutional claims did “not hinge on Dr.
Riley’s adherence to medical standards, but rather, to the
standards of the Constitution” and were not subject to
malpractice tribunal).
Because this case is more than two years
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old with little discovery undertaken to date, discovery will
continue and, as stated in open court in late April 2018, this
court will conduct a status conference on July 30, 2018.
CONCLUSION
In accordance with the foregoing discussion, the motion to
refer the negligence and medical malpractice claims to
Massachusetts Superior Court to convene a medical malpractice
tribunal (Docket Entry # 21) is ALLOWED.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
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