The Commonwealth of Massachusetts Appeals Court (“Massachusetts Appellate Court”) stated in its unpublished opinion dated July 26, 2021 in a medical malpractice case: “The judge lacked the statutory authority to grant the relief requested in the plaintiff’s motion to vacate. Although judges “may reduce the amount of the bond” if the plaintiff is indigent, they “may not eliminate the requirement thereof” and “shall” dismiss the case if the “bond is not posted within thirty days of the tribunal’s finding.” G. L. c. 231, § 60B … Thus, whatever mechanism exists for a case to be returned to the tribunal upon discovery of new evidence — an issue that has not been briefed by either party — the judge could not simply bypass the tribunal and reinstate the claims against Dr. Lozano, as requested by the plaintiff. We agree with the judge that such relief would be contrary to the tribunal’s screening role and the bond requirement, which the Legislature imposed “to ‘discourage frivolous medical malpractice claims.'””
The Underlying Facts
The Massachusetts medical malpractice plaintiff alleged that Drs. Lozano and Ajay K. Wakhloo had negligently performed a medical procedure in February 2015, causing her to suffer permanent nerve damage. The defendants sent a joint response to the claim letter in early December 2017. In the response the defendants acknowledged that “the procedure was performed by Dr. Lozano, under the supervision of Dr. Wakhloo.”
The plaintiff’s Massachusetts medical malpractice action alleged “J. Diego Lozano, M.D. and Ajay K. Wakhloo, M.D. performed” the procedure. Dr. Lozano’s and Dr. Wakhloo’s respective answers admitted this allegation.
After the action was referred to a medical malpractice tribunal, the plaintiff filed an offer of proof, which included expert opinions from Drs. Jay B. Krasner and Daniel Cousin. Neither expert offered an express opinion as to whether Dr. Lozano deviated from the standard of care. The sole mention of Dr. Lozano in either opinion was Dr. Krasner’s observation that the procedure was performed “by Dr. Ajay K. Wakhloo, . . . assisted by Dr. J. Diego Lozano (a fellow).” The tribunal found that the offer of proof was insufficient “to raise a legitimate question of liability appropriate for judicial inquiry” as to Dr. Lozano.
The plaintiff subsequently failed to post the statutorily required bond in the Superior Court (G. L. c. 231, § 60B) and Dr. Lozano moved to dismiss the claims against him. Subsequently, the plaintiff served what she called a motion under Mass. R. Civ. P. 60 (b) (1), 365 Mass. 828 (1974), or alternatively under Mass. R. Civ. P. 55 (c), 365 Mass. 822 (1974), to “vacate the judgment” and to “reinstate” the case as to Dr. Lozano (motion to vacate). The plaintiff argued that such relief was warranted because “the record was unclear until April of 2020 as to which doctor performed the procedure.” Although the plaintiff did not elaborate on the basis for this statement, she attached as an exhibit Dr. Wakhloo’s April 22, 2020, interrogatory answers, in which he stated: “I did not perform the procedure at issue. Rather, it was performed by Dr. Lozano under my supervision.”
The judge denied the plaintiff’s motion to vacate, finding that the record did not support her claim that she was unaware until April 2020 that Dr. Lozano performed the procedure, and that “reinstatement . . . would undermine the tribunal’s screening role and the requirements of posting a bond after an adverse tribunal decision.”
Source Colon v. Lozano
, Docket No. 20-P-1221.
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