After a hearing in Superior Court, a Massachusetts medical malpractice tribunal convened pursuant to G. L. c. 231, § 60B, determined that the plaintiff’s offer of proof, including an expert report, was insufficient to allow the plaintiff’s claim to go forward without posting a bond. After the plaintiff failed to pay the bond, the case was dismissed. The report by the plaintiff’s expert was based on a review of the plaintiff’s medical records, which were not provided to the tribunal. The plaintiff filed a motion to impound her medical records, deliberately filing the motion before she had filed her offer of proof, to which she intended to attach her medical records. The plaintiff had sought to submit the records in a manner that would shield them from public disclosure, but when her motion to impound the records was denied, she elected not to submit them at all. On appeal, the plaintiff contended that the motion judge erred in denying her motion to impound and the tribunal erred in determining that the offer of proof was insufficient.
Impoundment
The Uniform Rules on Impoundment Procedure states: “‘Impoundment’ shall mean the act of keeping some or all of the case record separate and unavailable for public inspection. Impounded records are not accessible to anyone other than the court, clerk, authorized court personnel, attorneys of record, and the parties to the case, unless otherwise ordered.” Rule 1(b)(9) of the Uniform Rules on Impoundment Procedure (2015).
The Massachusetts Appeals Court stated in its November 12, 2024 opinion: “Here, the judge could have considered that this was a medical malpractice case in which the plaintiff’s medical records were central to the litigation. Although the plaintiff has an interest in the privacy of her medical information, the defendants also have an interest in their professional reputations. The judge could have considered that the plaintiff’s publicly filed offer of proof already contained substantial details from her medical records. A narrowly tailored impoundment order would presumably exclude information already in the public domain. It was incumbent on the plaintiff to specify which specific documents or portions thereof she sought to impound. The judge afforded the plaintiff an opportunity to make a more particularized request, but the plaintiff declined. Under the circumstances, we cannot say that the judge’s decision on impoundment was “outside the bounds of reasonable alternatives.””
“To the extent that the plaintiff contends that the allegedly erroneous denial of her motion to impound medical records deprived her of the ability to meet her proof, the facts do not bear this out. In an offer of proof to a medical
malpractice tribunal, extrinsic evidence is not required to substantiate factual allegations in an expert report. See Booth, 36 Mass. App. Ct. at 21. Although the tribunal did not have the plaintiff’s medical records, the expert did. The
denial of the motion to impound did not stand as an impediment to the expert’s ability to state the standard of care and to identify the departure from the standard of care with respect to the individual medical provider defendants. Accordingly, the plaintiff’s offer of proof was insufficient, and her complaint was properly dismissed.”
A dissenting opinion stated, in part: “But under our law, it is not a condition of bringing a malpractice action that one make all of one’s private medical information available to the public. Because of the erroneous denial of the motion to impound, the nineteen year old plaintiff was improperly placed in the situation of being unable to submit her medical records to the tribunal without exposing them to the public. The order denying impoundment should be reversed, and the case remanded for a new hearing before the tribunal, at which the plaintiff can submit a more comprehensive offer of proof, including her impounded medical records. I respectfully dissent from the court’s failure to take this path.”
Source Dossantos vs. Beth Israel Deaconess Hospital – Milton, Inc., No. 22-P-1061.
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