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Can Attorney’s Payment of Medical Malpractice Bond Be a Factor in Setting Bond Amount — Faircloth v. DiLillo

hospital bed

In a recent Massachusetts Supreme Judicial Court (“SJC”) decision, a mother and daughter brought a medical malpractice action against a medical practitioner for complications arising during childbirth causing the child to have severe and permanent injuries. The plaintiffs claimed that the defendant failed to detect significant abnormalities that may have caused the birthing complications.

Through an attorney, the plaintiffs brought a claim to a a Medical Malpractice Tribunal (the “MMT”), alleging that the physician failed to recognize, report, or respond to the abnormalities found in the ultrasound, causing the baby to have severe and permanent injuries. Under Massachusetts General Laws Chapter 231 § 60B, before a patient can begin a medical malpractice lawsuit, they have to come before a Medical Malpractice Tribunal (the “MMT”). Massachusetts created the tribunal process in 1970s to help cut down on frivolous lawsuits. The panel is required to find for a plaintiff if the evidence presented can lead to a reasonable inference of liability for a jury trial.

For tribunal evidence, the plaintiffs brought a single opinion letter from a separate doctor. The opinion letter stated that the defendant signed and reviewed the ultrasound, admitted to finding the abnormality, and there was no evidence the defendant ever notified anyone of the abnormality. The tribunal found the plaintiff’s evidence insufficient to raise a reasonable inference of liability for a jury trial.

In order to move forward with a medical malpractice claim, a plaintiff must receive a majority vote of panel members, which consists of a superior court judge, an attorney, and a licensed healthcare provider. Under statutory tribunal rules, however, if the potential plaintiff fails to gain a majority vote, he or she can still post a $6,000 medical malpractice bond and still proceed to trial. The plaintiff will forfeit the bond if they lose the medical malpractice lawsuit. Furthermore, if the plaintiff is indigent, they may request the judge on the panel reduce the $6,000 bond.

The plaintiffs in the case moved to have the tribunal judge reduce the $6,000 medical malpractice bond based solely on their financial status. The judge concluded that the plaintiffs were indigent but also assumed that the plaintiffs’ attorney would post the bond, “not having been informed otherwise.” Based on the assumed attorney funding, the tribunal judge refused to reduce the bond since the plaintiffs would not be prevented from moving forward with the case.

The SJC disagreed with the tribunal judge and found that an attorney’s agreement to advance or pay expenses, including the medical malpractice bond, is not a relevant factor in reducing the amount of the bond. The SJC disagreed with the tribunal judge’s assertion that refusing to reduce the bond would merely require plaintiffs’ attorney to decide whether to post the bond. Citing Massachusetts Rules of Professional Conduct, the court recognized that it was the decision of the client and not the attorney whether to post the bond and move forward. The Court worried about the adverse affect the tribunal judge’s ruling may have on indigent clients that would dismiss cases because they could not afford the $6,000 bond. Furthermore, the court determined that such a ruling would unduly complicate tribunals having to examine the finances of an attorney or law firm.

The State Supreme Court’s ruling improves a plaintiff’s chances of recovering their losses in a medical malpractice case. The decision protects indigent plaintiffs by preventing tribunal judges from using an attorney’s ability to pay a medical malpractice bond as a factor in the bond amount, thus preventing inadvertently dismissing medical malpractice claims.

Medical malpractice resulting in injury can be emotionally and financially difficult. These cases can be complex, and you are encouraged to contact a local medical malpractice attorney who understands the law and can review the elements of your case.

If you have suffered from medical malpractice, we can ensure that you do not settle for less than the compensation you deserve. Local attorney, John C. Manoog III, has extensive experience handling Medical Malpractice cases. For a free initial consultation, call the office at 888-262-6664 or reach us by email. There is always someone available to talk to you about your case.

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