Julia Dixon Muqi v. Jonathon Sillman. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-617
JULIA DIXON MUQI
vs.
JONATHON SILLMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case arises out of a claim of medical malpractice.
The plaintiff filed a complaint in the Suffolk Superior Court in
September 2020 alleging, inter alia, that the defendant failed
to examine or treat her for a serious ear infection. The
defendant, pursuant to G. L. c. 231, § 60B, requested a medical
malpractice tribunal after the plaintiff failed, as is required,
to file an offer of proof. See Kopycinski v. Aserkoff, 410
Mass. 410, 412-413 (1991). In response, the plaintiff filed an
offer of proof; however, it failed to include an expert opinion.
See Anderson v. Attar, 65 Mass. App. Ct. 910, 911 (2006) ("[a]n
expert is required when jurors are not competent from their own
knowledge and experience to determine whether a [doctor] was
negligent"). See also Ward v. Levy, 27 Mass. App. Ct. 1101,
1102-1103 (1989) and cases cited. The tribunal convened in
February 2022 and issued a finding that the plaintiff's offer of
proof was insufficient to support the claims against the
defendant. As a result, the plaintiff was ordered to post a
bond in the amount of $6,000, as required by G. L. c. 231,
§ 60B, to further pursue her claims. The plaintiff moved to
reduce the bond to $0, and the judge denied her motion. After
final judgment was entered for failure to post the bond, this
appeal followed.
The narrow issue before us is the propriety of the judge's
denial of the plaintiff's motion to reduce the required bond
from $6,000 to $0. Because there was no error in the judge's
ruling, we affirm. General Laws c. 231, § 60B, states:
"If a finding is made for the defendant or defendants in
the case the plaintiff may pursue the claim through the
usual judicial process only upon filing bond in the amount
of six thousand dollars in the aggregate secured by cash or
its equivalent with the clerk of the court in which the
case is pending, payable to the defendant or defendants in
the case for costs assessed, including witness and experts
fees and attorneys fees if the plaintiff does not prevail
in the final judgment. Said single justice may, within his
discretion, increase the amount of the bond required to be
filed. If said bond is not posted within thirty days of
the tribunal's finding the action shall be dismissed. Upon
motion filed by the plaintiff, and a determination by the
court that the plaintiff is indigent said justice may
reduce the amount of the bond but may not eliminate the
requirement thereof."
The plaintiff has not claimed indigency in this case, but even
if she had, the judge would be prohibited from reducing the bond
to $0 as requested. G. L. c. 231, § 60B. See Rogers v. Boston,
2
33 Mass. App. Ct. 328, 329 (1992) (plaintiff has burden of
establishing indigency). Discerning no authority in the law to
reverse the judge's ruling, we decline to do so.1 See Denton v.
Beth Israel Hosp., 392 Mass. 277, 280-281 (1984).
Judgment for failure to file
bond affirmed.
By the Court (Sullivan,
Desmond & Singh, JJ.2),
Clerk
Entered: May 11, 2023.
1 We acknowledge the plaintiff's arguments pertaining to her
complaint of medical malpractice, namely that the defendant
failed to examine, diagnose, or treat her alleged infection.
While we are sympathetic to her obvious distress, our review
here is narrow and focuses solely on the claimed procedural
infirmity.
2 The panelists are listed in order of seniority.
3