JULIA DIXON v. MEDHOST DISPATCHER & Others. ( 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-1123
JULIA DIXON
vs.
MEDHOST DISPATCHER & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a judgment dismissing her civil
suit against the defendants on the ground that she failed to
file a bond imposed by law after a medical malpractice tribunal
found her offer of proof insufficient to support the claims
against the defendants. See G. L. c. 231, § 60B. As
unfortunately happens often when parties represent themselves
before us, the brief of the plaintiff does not make clear
precisely what arguments she intends to raise before us. We
will, however, address the three interlocutory orders that
1 Kathleen Quiles, Adelina Goncalves, Katherine Bourassa, Shayan
Hashmi, Natalia Przeworniak, Alexis Coulas, Matthew Mostofi,
Jessica DaSilva, Jennifer Marshall, Justin Popso, Jennifer
Collins, Kathryn Lupez, Kasey Hayes, Kathryne Adams, Pooja
Sikka, Suchakree Sanguansataya, Ayesah Khalid, Tine Vindenes.
As is our custom, we take our caption from the plaintiff's
complaint.
appear to be at the heart of her appeal, as well as the ultimate
order of dismissal.
First there is the finding of the medical malpractice
tribunal that her offer of proof was insufficient to support her
claims. What is clear is that after going to the emergency room
at Tufts Medical Center, the defendants caused the plaintiff to
be involuntarily hospitalized under G. L. c. 123, § 12,
apparently on the basis that she presented a likelihood of
serious harm to herself by reason of mental illness. She
alleges that her commitment was unlawful, an act of retaliation
for a lawsuit she filed, that the proper procedures for that
commitment were not followed, that during the commitment medical
personnel refused to treat what she alleges was a Methicillin-
resistant Staphylococcus aureus (MRSA) infection of her ear,
which led to harm to her, that they denied her access to her
necessary medications during her stay, and that she was held
longer than the statutorily permitted period of three days.
There can be no doubt based on her brief that her temporary
commitment under the statute was an extremely distressing event
for the plaintiff.
To the extent the plaintiff’s claim is one for malpractice,
the tribunal concluded that she had failed to produce before it
evidence of the standard of care with respect to her alleged
medical condition and its diagnosis and treatment, and that she
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failed to introduce evidence of the standard of care with
respect to the determination of the risk of self-harm necessary
to permit a medical professional to seek a commitment under
G. L. c. 123, § 12. The plaintiff did fail to put evidence of
an expert in on these points, and we see no error in the
tribunal’s conclusion or its imposition of the statutorily
required $6,000 bond. In her brief, the plaintiff asserts that
she does have evidence, but she does not describe any expert
evidence of the type that would be necessary to describe the
standard of care and its breach.
The plaintiff subsequently filed a motion to reduce the
bond to zero, but even assuming the plaintiff was indigent as
required under G. L. c. 231, § 60B, for a reduction of the bond,
which was not shown by the evidence, and that a bond could be
reduced to zero, though it appears some dollar amount is
required by the statute, see id. (a "justice may reduce the
amount of the bond but may not eliminate the requirement
thereof"), in the absence of the type of evidence that was
missing from what was presented to the tribunal, we see no error
in the judge’s denial of that motion.
The plaintiff also filed a "Motion to Remove an Error,"
alleging that the action should not have been subject to G. L.
c. 231, § 60B, the statute creating the system by which
tribunals review claims for medical malpractice. While we
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express no opinion on the propriety of the submission of the
entire case to the medical malpractice tribunal, it is true that
"the tribunal 'should evaluate only the medical aspects of a
malpractice claim.'" Leininger v. Franklin Med. Ctr., 404 Mass.
245, 247-248 (1989), quoting Salem Orthopedic Surgeons, Inc. v.
Quinn, 377 Mass. 514, 521 (1979). Indeed, the Supreme Judicial
Court has concluded that some errors in application of G. L.
c. 123, § 12, are not medical in nature and not subject to
review by a medical malpractice tribunal. See Leininger, supra
at 248. And it is also true that the plaintiff’s complaint
referred not only to malpractice but to violations of her civil
rights and errors in application of the statute.
The plaintiff's filing of her motion, however, did not
comply with Superior Court Rule 9A. This provides the procedure
one must follow when filing a motion to ensure the other side
has the proper opportunity to reply.
The judge denied the motion "without prejudice to re-filing
in accordance with Superior Court Rule 9A." This meant that the
judge was not saying that the motion was without merit. Rather,
because Rule 9A had not been complied with, the judge was
expressing no opinion at all on the merits of the motion.
Rather, in light of the failure to comply with Rule 9A, the
judge was providing the plaintiff with an opportunity to correct
that failure by complying with Rule 9A and to refile the motion,
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so that once the proper procedure was followed, the judge could
address it.
Nothing in the record before us, however, indicates that
the plaintiff availed herself of this opportunity or refiled the
motion. The denial of the motion without prejudice on the
ground that Rule 9A had not been complied with was not error.
Finally, as to the ultimate order of dismissal, having
properly concluded that the bond should not be reduced in light
of the evidence produced before the tribunal and the court, the
judge did not err in dismissing the action for failure to post
the bond.
Judgment affirmed.
By the Court (Rubin, Neyman &
Walsh, JJ. 2),
Clerk
Entered: December 13, 2023.
2 The panelists are listed in order of seniority.
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