MCCUSKER v. UNITED STATES OF AMERICA et al
Filing
136
Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER on Plaintiff's Appeal of the Ruling of the Medical Malpractice Tribunal. (Russo, Noreen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EDWARD G. MCCUSKER,
Plaintiff,
v.
No. 17-cv-11334-DLC
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM AND ORDER ON PLAINTIFF’S APPEAL OF THE RULING OF THE
MEDICAL MALPRACTICE TRIBUNAL
CABELL, U.S.M.J
I.
INTRODUCTION
Pro se plaintiff Edward McCusker asserts claims of medical
malpractice and negligent infliction of emotional distress (NIED)
against the United States based on the allegedly substandard care
he received while incarcerated at Federal Medical Center (FMC)
Devens. 1
McCusker
alleges
that,
after
he
was
hospitalized
following an assault within the facility, staff at FMC Devens
withheld basic treatment from him and failed to comply with the
discharge instructions from the hospital, resulting in permanent
injury to his eyes.
1
McCusker has since completed serving his term of incarceration.
On June 24, 2019, the court referred the matter to a medical
malpractice tribunal pursuant to M.G.L. c. 231, § 60B.
101).
(Dkt. No.
On August 31, 2023, the tribunal found that the evidence
McCusker had presented was not “sufficient to raise a legitimate
question
of
liability
appropriate
for
judicial
inquiry,”
instead reflected “merely an unfortunate medical result.”
No. 123, p. 3) (quoting M.G.L. c. 231, § 60B).
and
(Dkt.
As part of its
finding, the tribunal ordered McCusker to post a bond of six
thousand ($6,000) dollars within 30 days or else face dismissal of
this action.
(Id.).
To ensure that things moved along in a timely
manner, this court on September 18 also directed McCusker to either
post a bond or file a motion appealing the tribunal’s ruling.
(Dkt. No. 124).
McCusker opted for the latter approach and filed
the instant motion (after requesting and receiving an extension).
(Dkt. No. 132).
McCusker in his motion ostensibly seeks three forms of relief.
First, he appeals the tribunal’s finding.
Second, he argues for
the first time that he never should have been required to submit
his claims to the tribunal and moves that he therefore be permitted
to continue his suit against “non-licensed staff” at FMC Devens.
Finally, he argues that the tribunal’s finding does not reach his
NIED claim and he therefore should be permitted to continue to
pursue that claim.
The United States timely opposed the motion,
arguing that the tribunal’s finding is correct and that McCusker’s
2
other arguments are untimely.
(Dkt. No. 133). 2
For the reasons
that follow, the court affirms the tribunal’s ruling and otherwise
denies McCusker’s motion.
II.
APPEAL OF THE TRIBUNAL’S FINDING
Under Massachusetts law, every action for medical malpractice
must be submitted to a medical malpractice tribunal for screening.
M.G.L. c. 231, § 60B.
The tribunal’s role is to “determine if the
evidence presented [by the plaintiff] 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.” Id. If the tribunal makes the latter
finding, the plaintiff must post a bond in the amount of six
thousand dollars (or less if reduced by the tribunal on the
plaintiff’s motion) within 30 days of the finding or else face
dismissal of the action.
The purpose of this statutory
Id.
screening process is to discourage frivolous medical malpractice
claims to avoid unnecessary premium increases for malpractice
insurance.
Lane v. Winchester Hosp., 187 N.E.3d 1025, 1028 (Mass.
App. Ct. 2022).
Under this framework, “[t]he plaintiff has the burden of
showing the tribunal that (1) the defendant is a health care
provider, (2) there is evidence that the defendant’s performance
McCusker also filed a reply brief in support of his appeal. (Dkt. No. 134).
The court considers this reply notwithstanding McCusker’s failure to seek the
court’s leave before filing it as required by Local Rule 7.1(b)(3).
2
3
did not conform to good medical practice, and (3) damages resulted
therefrom.”
DeLong v. Bigio, Civil Action No. 17-11783-PBS, 2019
WL 13395243, at *2 (D. Mass. May 7, 2019) (citing Santos v. Kim,
706 N.E.2d 658, 660-61 (Mass. 1999)).
The “plaintiff’s offer of
proof is sufficient if ‘anywhere in the evidence, from whatever
source derived, any combination of circumstances could be found
from which a reasonable inference could be drawn in favor of the
plaintiff.’” Id. (quoting Feliciano v. Attanucci, 119 N.E.3d 1209,
1213 (Mass. App. Ct. 2019)).
evidence;
mere
allegations
However, the plaintiff must offer
are
insufficient.
DiGiovanni
v.
Latimer, 454 N.E.2d 483, 485 (Mass. 1983).
Here, as noted above, the tribunal found that McCusker failed
to offer sufficient evidence to make out a colorable medical
malpractice
claim.
The
materials
McCusker
presented
to
the
tribunal consisted of a cover letter, a certificate of service, a
copy of the operative complaint in this action, and an assortment
of medical records from FMC Devens, HealthAlliance Hospital, and
the Massachusetts Eye and Ear Infirmary.
of the Medical Malpractice Tribunal).
(Dkt. No. 123, Findings
McCusker indicated in his
cover letter that he also intended to submit “medical records and
statements from [his] [e]ye [s]urgeon and [o]phthalmologist,” (id.
at p. 4), but it appears that he never did so.
Notably, the
medical records that McCusker did submit are all from the date of
the assault or the day after.
4
McCusker argues that the tribunal’s finding was erroneous
because the depredations he suffered upon returning to FMC Devens
from his hospitalization -- namely the withholding of ice and pain
medication, the removal of his “fox shield” over his eye, and his
placement in a cell rather than a hospital bed -- were obvious
deviations from the standard of care.
The problem for McCusker is
that he did not present evidence to substantiate his account of
the mistreatment he allegedly suffered.
Of the materials McCusker
submitted to the tribunal, only the medical records constitute
evidence.
The cover letter and the complaint are only McCusker’s
allegations reduced to writing, and allegations are not enough to
clear even the tribunal’s low standard of proof.
See DiGiovanni,
454 N.E.2d at 485; see M.G.L. c. 231, § 60B (describing categories
of evidence admissible before a medical malpractice tribunal).
As for the medical records, none of them indicate that FMC
Devens staff withheld ice or pain medication from McCusker or
removed his fox shield.
Indeed, the latest of the records,
memorializing a clinical encounter between McCusker and Physician
Assistant Julie Taylor on June 4, 2014 (the day after the assault)
at 2:04 pm, notes that McCusker was “already taking acetominophen
[sic] for pain.”
(Dkt. No. 123, p. 33).
At most, the records
indicate (1) that McCusker was placed in an “SHU holding cell”
after returning from the hospital, (id. at p. 28), and (2) that
McCusker’s eye doctor did not co-sign the previously mentioned
5
physician assistant note until June 9, 2014.
(Id. at p. 23).
Even
if, drawing all reasonable inferences in McCusker’s favor, this
were enough to establish a deviation from good medical practice,
McCusker still would not prevail because there is no evidence in
the record that anything the staff at FMC Devens did caused him
injury.
See Bigio, 2019 WL 13395243, at *2.
In fact, nothing in
the record aside from McCusker’s bare allegations even indicates
that he has suffered the permanent injuries he claims.
This alone
is sufficient to affirm the tribunal’s finding.
Further, the court notes that “[t]he tribunal’s conclusion
that the plaintiff has failed to submit sufficient evidence to
support his claim is buttressed by his failure to submit any expert
opinion of malpractice.”
DeLong v. Nelson, Civil Action No. 17-
11783-PBS, 2019 WL 13395244, at *4 (D. Mass. Nov. 19, 2019).
“Only
in ‘exceptional cases,’ where negligence or a harmful result are
obvious to a lay person, may a finding of malpractice be made
without testimony by an expert.” Id. (citing Civitarese v. Gorney,
266 N.E.2d 668, 671 (Mass. 1971)).
There is no indication that
McCusker ever attempted to provide an expert opinion or requested
that the tribunal exercise its statutory authority to appoint an
impartial expert.
See M.G.L. c. 231, § 60B.
To be sure, McCusker
argues that this is a case where negligence would be obvious to a
layperson.
Again, though, it is far from obvious that this
purported negligence caused the serious injuries that McCusker
6
claims.
This
failure
to
provide
evidence
of
causation
is
McCusker
has
independently fatal.
Taken
together,
the
lack
of
evidence
that
suffered the lasting injuries he claims, coupled with the lack of
an expert opinion that the conduct of staff at FMC Devens caused
those injuries, more than suffices to support the tribunal’s
conclusion that McCusker failed to make a sufficient offer of
proof.
The court therefore affirms the tribunal’s finding.
III. PROPRIETY OF SUBMISSION TO THE TRIBUNAL
As noted, McCusker argues in addition that his claims should
not have been subject to the tribunal in the first place.
This is
so, he contends, because some of the negligent acts and omissions
that caused his injuries were perpetrated by non-medical staff at
FMC Devens.
These non-medical staff are not health care providers
as defined by the statute, the argument goes, and so their actions
are not subject to tribunal review.
M.G.L. c. 231, § 60B; Carter
v. Bowie, 736 N.E.2d 385, 388 (Mass. 2000) (citing Perez v. Bay
State Ambulance & Hosp. Rental Serv., Inc., 602 N.E.2d 570, 573
(Mass. 1992)).
Assuming dubitante that McCusker’s characterization of his
claims is accurate, 3 the time for him to raise this argument has
In a memorandum and order issued on June 24, 2019, the court construed the
operative complaint as asserting claims of (1) deliberate indifference to
McCusker’s serious medical needs in violation of the Eighth Amendment, (2)
medical malpractice, (3) intentional infliction of emotional distress (IIED),
and (4) NIED. (Dkt. No. 99, pp. 5, 22). The court went on to dismiss the
3
7
long since passed.
The medical malpractice tribunal first arose
as an issue in this case on March 8, 2018, when the United States
filed its first motion to dismiss based in part on McCusker’s
failure to present his case to a tribunal.
(Dkt. Nos. 51, Motion
to Dismiss; 52, Deft’s Memo in Support of Motion to Dismiss, pp.
15-18).
In opposing the motion, McCusker did not engage with the
particular statutory requirement at issue, nor did he suggest that
it did not apply to him for the reasons he now advances.
No. 69, Pltf’s Opposition to Motion to Dismiss, p. 5).
(Dkt.
In its
June 2019 ruling on the government’s first motion to dismiss, the
court decided that McCusker was required to present his case to a
medical malpractice tribunal, and stayed the action until he did
so.
(Dkt.
No.
99,
pp.
18-19,
22).
McCusker
never
sought
reconsideration of that order or otherwise objected to the referral
to the tribunal.
Fast forward to November 6, 2020, when the United States filed
another motion to dismiss based on McCusker’s failure to file an
offer of proof with the tribunal.
(Dkt. No. 110).
This event
presented McCusker with yet another opportunity to raise his
deliberate indifference and IIED claims, leaving only claims for medical
malpractice and NIED against the United States. (Id. at pp. 10-16, 22-22).
McCusker has never asked the court to reconsider its ruling or otherwise
objected to the court’s interpretation of the amended complaint. Additionally,
the United States points out that, except for the warden of FMC Devens, the
individual defendants named in the complaint (who have since been dismissed)
are all medical providers and not the non-medical staff members who McCusker
now alleges are partly responsible for his injuries.
8
argument that his claims were not subject to tribunal review. 4
He
did not do so and, instead, sought and received an extension of
time to file his offer of proof.
(Dkt. Nos. 114; 115).
Then, on March 9, 2021, after that extended deadline had
elapsed with no action on McCusker’s part, the United States moved
anew to dismiss the case.
(Dkt. No. 117).
Once again, McCusker
filed an opposition but he did not object to proceeding before the
tribunal.
(Dkt. No. 118).
Against that backdrop, it is only now, a full four years after
the court’s referral of McCusker’s claims to the tribunal, and
only after an adverse finding, that McCusker has raised this
argument.
This is, simply, too little too late.
By not raising
the issue until now, the court finds that McCusker has waived any
argument that the alleged involvement of non-medical staff means
that his claims are not subject to tribunal review.
See Butler v.
Deutsche Bank Tr. Co. Ams., 748 F.3d 28, 36 (1st Cir. 2014)
(finding
plaintiff
waived
argument
by
not
raising
it
in
his
opposition to a motion to dismiss); see also Ahmed v. Rosenblatt,
118 F.3d 886, 890 (1st Cir. 1997) (“[P]ro se status does not
insulate a party from complying with procedural and substantive
law.”).
The court does not take a position on whether the argument would have been
timely even at that point, some 17 months after the initial referral to the
tribunal.
4
9
IV.
MCCUSKER’S NIED CLAIM
Finally, McCusker argues that, regardless of whether some
part of his case is properly subject to the tribunal, his claim
for NIED is not.
timely.
This argument, unlike the previous one, is
The court first explicitly notified McCusker that the
NIED claim was subject to the tribunal’s finding in its memorandum
and order dated September 18, 2023.
(Dkt. No. 124, p. 4 n.5).
This motion is McCusker’s first opportunity to respond to the
court’s order.
McCusker asserts that his NIED claim should not be subject to
the tribunal’s finding because NIED and medical malpractice are
legally distinct causes of action and NIED can occur without
medical malpractice.
misses
the
tribunal’s
This is correct as far as it goes, but it
point.
McCusker’s
finding
because
it
NIED
claim
overlaps
is
subject
with
his
to
the
medical
malpractice claim factually, not legally.
Under Massachusetts law, “all ‘treatment-related’ claims [are
to]
be
referred
to
medical
malpractice
tribunals.”
Lane
v.
Winchester Hosp., 187 N.E.3d 1025, 1027-28 (Mass. App. Ct. 2022)
(citing Little v. Rosenthal, 382 N.E.2d 1037, 1040 (Mass. 1978)).
“In determining whether a claim is ‘treatment-related,’ courts
look to the underlying factual allegations, not the legal theory
advanced.”
Bigio, 2019 WL 13395243, at *3 (citing Johnston v.
Stein, 562 N.E.2d 1365, 1366 (Mass. App. Ct. 1990) (rescript)).
10
Here, the negligent acts and omissions that McCusker pleads
as the cause of his emotional distress -- the withholding of ice
and pain medication, the removal of his fox shield, his placement
in
a
cell,
and
the
general
failure
to
follow
the
discharge
instructions from the Massachusetts Eye and Ear Infirmary -- are
the same negligent acts that underlie his medical malpractice
claim.
As such, McCusker’s NIED claim, despite being legally
distinct from his medical malpractice claim, relies on the same
facts, and is thus “treatment-related,” and properly subject to
tribunal review.
See Horan v. Cabral, Civil Action No. 16-10359-
MBB, 2018 WL 2187368, at *2 (D. Mass. May 11, 2018) (referring
negligence
claim
to
medical
malpractice
tribunal
where
claim
implicated health care provider’s professional judgment); Audette
v. Carrillo, Civil Action No. 15-13280-ADB, 2017 WL 1025668, at *4
(D.
Mass.
Mar.
16,
‘treatment-related’”
2017)
claims,
(referring
including
malpractice tribunal).
11
plaintiff’s
NIED
claim,
to
“clearly
medical
V.
CONCLUSION
For the foregoing reasons, the court AFFIRMS the finding of
the medical malpractice tribunal and otherwise DENIES McCusker’s
motion.
Because McCusker did not post the required bond by the
deadline, the court orders that this case be dismissed.
So ordered.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: December 13, 2023
12
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