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Massachusetts Appellate Court Affirms Dismissal of Medical Malpractice Litigant’s Case for Failure to Prosecute

Cape Cod medical malpractice cases have some special requirements that other types of negligence cases do not. One of these is the filing of an offer of proof that is presented to a three-person tribunal that will determine whether the plaintiff has enough evidence to raise a legitimate question as to the defendant(s)’ liability for harm caused by medical negligence.

If the tribunal answers the question in the affirmative, the case proceeds to the next phase of litigation in the same manner that a non-medical tort case would. If the tribunal does not find that the plaintiff has presented substantial evidence of liability, however, the case is not necessarily over.

At that point, the plaintiff has the option of posting a bond to cover certain defense costs if he or she does not prevail in the litigation. The court has some flexibility as to the amount of the bond, and the parties may argue that it be adjusted upward or downward from the “usual” amount of $6000.

Facts of the Case

In a recent unreported case, the plaintiff was a woman who filed suit against the defendants, a medical center and some of its “employees or agents,” in 2016. In her suit, the plaintiff asserted that she received health care services from the defendants in September 2013 and that the defendants were negligent in such care. The medical center answered the plaintiff’s complaint by requesting that a medical malpractice tribunal be convened. In 2018, the trial court ordered that a tribunal hearing be held in mid-May 2018; the order also contained a provision that the plaintiff’s offer of proof was due by the end of April 2018.

The plaintiff missed the offer of proof deadline and, five days before the tribunal hearing was set, filed an “emergency motion to continue” the tribunal on the basis that plaintiff’s attorney could not appear at the scheduled time due to medical issues. Ultimately, the hearing was reset, and the plaintiff was given additional opportunities to file her offer of proof. The plaintiff did not file an offer of proof, however, nor did she notify the court that she did not wish for a tribunal hearing to be had. She did, however, request that she be allowed to post a lower bond due to her indigence. The trial court granted the medical center’s motion to dismiss the plaintiff’s complaint, and the plaintiff appealed.

Decision of the Court

The Massachusetts Appeals Court affirmed the lower court’s order dismissing the plaintiff’s case against the medical center. Although the plaintiff argued that she should have been allowed to post a bond and that the reason that she did not do so was that her motion for a reduction in the amount of the bond was not ruled on and hence she was uncertain of how much to post. The appeals court rejected this argument, finding no error in the trial court’s decision to dismiss the plaintiff’s case and noting that a trial judge has discretion to dismiss a case when a plaintiff fails to prosecute his or her case or does not comply with the court’s order(s). Although an appellate tribunal can reverse the dismissal of a case on such grounds, the reviewing court found no reason to do so here because, despite multiple opportunities to prosecute her case, the plaintiff did not do so. Rather, she missed three offer of proof deadlines, failed to post a bond by the appropriate date, and did not appear at the tribunal hearing.

To Schedule a Consultation with a Cape Cod Malpractice Lawyer

If you have reason to believe that you or a family member has been hurt by the negligence of a doctor, nurse, hospital, or other medical provider, you should consult an attorney as soon as possible. These cases take a considerable amount of preparation, and a delay in seeking legal advice can be very detrimental to your case. To schedule a free consultation with an experienced Cape Cod medical malpractice attorney, call the Law Offices of John C. Manoog III, today at 888-262-6664 or contact us through this website. We are available for consultation during COVID-19 and will be happy to work with you regarding alternative methods for the intake of information required for your case, if necessary.

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