In its December 12, 2023 Memorandum and Order, the Commonwealth of Massachusetts Appeals Court reversed summary judgment granted to the defendant hospital in a medical malpractice case brought by a pro se plaintiff, and further stated, “A pro se litigant is bound by the same rules of procedure as litigants with counsel … In addition to meaning that a pro se litigant is not entitled to special privileges, this also means that a pro se litigant should not be subjected to special obstacles as occurred here. Similarly, attorneys facing pro se litigants are expected not to take advantage of those litigants or exploit the absence of counsel as an opportunity to lead the court astray, as also occurred here.”
Massachusetts Appellate Court Describes The Procedural Problems In The Trial Court
“This case has been plagued by procedural irregularity. Even though the pro se plaintiff filed a timely offer of proof, the defendants moved to require the defendant [sic] to post a bond without convening a medical malpractice tribunal on the ground that the offer of proof was inadequate. Usurping the tribunal’s role to determine the adequacy of the offer of proof, a Superior Court judge ordered that the plaintiff post a bond despite the absence of a tribunal ruling.
Around the same time, prior to the close of discovery, the defendants moved for a protective order to preclude any discovery “until the Plaintiff produces an expert report on the issues of standard of care and causation.” A Superior Court judge allowed the motion “for all of the good and sufficient reasons [in the motion].”
Despite having obtained a suspension of discovery “until the Plaintiff produces an expert report,” the defendants took the position that discovery was closed and moved for summary judgment. The defendants presented no evidence that they were not negligent or that the plaintiff could not prove that they were negligent. Rather, they relied on the fact that the plaintiff had not yet produced an expert report. The pro se plaintiff immediately complained that the motion was “premature.”
A second Superior Court judge, reasonably enough, cut through this morass and informed the plaintiff that “[h]e must present an expert in the relevant area of medical specialty who will give an opinion supporting his contention, and further stating that what this doctor did, or failed to do, fell below the accepted standard of medical practice of the average qualified doctor in the defendant’s area of specialty in 2015.” The judge then “afford[ed] the Plaintiff this one last opportunity to retain an expert, obtain an opinion, and provide it to the Defendants.” She ordered the plaintiff to “provide the expert’s opinion to the Defendants by February 1, 2022.”
The plaintiff fully complied with these instructions. On January 22, 2022, the plaintiff provided the defendants with a letter by Dr. Khalid Azar expressing his expertise in gastroenterology in 2015 and describing several ways in which, in his opinion, the care provided by the defendants was substandard.
The casual reader might expect that, at this point, discovery would have resumed, the defendants would have explored the adequacy of Dr. Azar’s opinion, and a new summary judgment motion would eventually have been filed. Instead, at the defendants’ urging, the second judge moved the proverbial goalposts and disregarded the expert report on the grounds that it was “not in the form of sworn testimony or Affidavit” and “is not properly before the Court pursuant to G.L. c. 233 §79G,” requirements noticeably absent from the judge’s earlier order.””
. . .
“Here, as stated, the defendants’ only demonstration was that the plaintiff had not provided any expert testimony. By the time the judge ruled, however, the plaintiff had provided expert testimony in the form of a sworn expert report in accordance with the second judge’s order. Accordingly, there was no basis for granting the motion for summary judgment on this motion and record … It may be that Dr. Azar’s opinion, presumably revised to reflect whatever discovery is provided after discovery resumes, ultimately will be inadequate to create a genuine issue of material fact. That determination, however, will have to await the end of discovery and briefing by the parties upon a motion for summary judgment filed after the summary judgment record is developed, rather than prior to its development.”
If you or a loved one may have been injured (or worse) as a result of hospital negligence in Massachusetts or in another U.S. state, you should promptly find a Massachusetts medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your hospital malpractice claim for you and represent you or your loved one in a hospital medical malpractice case, if appropriate.
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