In its opinion filed on August 5, 2013, the Massachusetts Supreme Judicial Court (“SJC”) came to the aid of indigent medical malpractice plaintiffs when it decided that a judge may not refuse to reduce the amount of a required bond solely because he or she believes the plaintiffs’ attorney is paying or advancing the court costs and expenses of litigation on behalf of the indigent client, including the cost of the bond (“even if the plaintiffs’ fee agreement with their counsel explicitly stated that counsel would pay any bond imposed by the court pursuant to G.L. c. 231, § 60B, this factor cannot be considered by a judge in determining whether to reduce the bond”).
Massachusetts General Laws c. 231, § 60B provides, “[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth … and an attorney authorized to practice law in the commonwealth.” Where a medical malpractice tribunal determines that there is not sufficient evidence to raise a legitimate question of a defendant’s liability appropriate for judicial inquiry, “the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of [$6,000] … payable to the defendant or defendants in the case for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment.” However, “[u]pon motion filed by the plaintiff, and a determination by the court that the plaintiff is indigent,” the judge who participated in the tribunal “may reduce the amount of the bond but may not eliminate the requirement thereof.”
The SJC held that in exercising his or her discretion in determining whether or not to reduce the amount of such a bond, a judge should evaluate the reasonableness of the plaintiff’s continued pursuit of the action by determining whether the indigent plaintiff “made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard” and “whether a [litigant] who is able to pay and was paying the expenses [herself], would consider the [bond] sufficiently important that [s]he would choose to obtain it.” The SJC stated, “[w]here a reasonable litigant with means would expend her own funds to pay the bond, a judge should reduce the amount of the bond to give an indigent plaintiff the same opportunity to proceed with the action, because otherwise the judge may “unreasonably burden” a potentially meritorious suit.”
In the case the SJC was deciding, the plaintiffs (a mother and her child) alleged that a medical malpractice defendant participating in the plaintiff’s prenatal care failed to recognize, report, or respond to a significant abnormality on an ultrasound examination that resulted in the baby’s severe and permanent personal injuries. The tribunal determined that the plaintiffs had failed to raise a legitimate question of liability appropriate for judicial inquiry as to this defendant. The plaintiffs then moved for a reduction of the $6,000 bond they were required to file in order to continue pursuing their claim under § 60B, to $100. The tribunal judge found that the plaintiffs were indigent but concluded “that plaintiffs’ indigency does not warrant the reduction of the statutorily set bond amount in this case.”
The tribunal judge stated, “Not having been informed otherwise, the court assumes that the indigent plaintiffs are not funding the expenses of this litigation. Thus, refusing to reduce the bond will not deprive the indigent plaintiffs of their claims against [the defendant]. It will merely require plaintiffs’ counsel to decide whether [their] view of the strength of this case warrants advancement of the bond amount, which will only be an actual (as opposed to temporary) expense of this litigation if plaintiffs do not prevail in the final judgment. Reducing the bond amount in this case, in reality, advantages only plaintiffs’ counsel, which is not the designed purpose of the discretionary authority to reduce the amount of the bond. Moreover, it would deprive the defendants’ malpractice insurer from having at least some portion of its considerable expenses of this litigation defrayed in the event, as the tribunal concluded, the case against [the defendant] does not raise a legitimate question as to liability appropriate for judicial inquiry.”
In overturning the tribunal judge’s decision, the SJC stated, “we disagree with the judge that an attorney’s agreement to advance or pay court costs and expenses of litigation is a relevant factor that may be considered in deciding whether to reduce the amount of a medical malpractice bond.”
Source: Aaliyah Faircloth & another vs. Louis DiLillo, Case No. SJC-11269.
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