McMahon v. Glixman

• Decision Date: 27 August 1979
• Citation: 393 N.E.2d 875,379 Mass. 60
• Parties: George S. McMAHON et al. 1 v. Morris GLIXMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 875

393 N.E.2d 875

379 Mass. 60

George S. McMAHON et al. ¹ v. Morris GLIXMAN.

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 10, 1979.

Decided Aug. 27, 1979.

Curley, Ayers & Curley, Wakefield, for plaintiffs.

William C. O'Neil, Jr., Worcester (Paul P. O'Connor, Worcester, with him), for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

QUIRICO, Justice.

The plaintiff, George S. McMahon, seeks to recover damages for personal injuries, and his wife, June A. McMahon, seeks to recover for loss of consortium, as a result of the alleged malpractice of the defendant, an optometrist. The action was heard by a medical malpractice tribunal convened pursuant to G.L. c. 231, § 60B, which found that the evidence (offered by the plaintiffs) "is not sufficient to raise a legitimate question of liability appropriate for judicial inquiry." The judge who sat with the panel thereupon ordered that, as a condition precedent to pursuing the usual judicial process, the plaintiffs file a bond "payable to the defendant for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment." See G.L. c. 231, § 60B, inserted by St.1975, c. 362, § 5.

The plaintiffs did not file the required bond, whereupon the defendant filed a motion that judgment be entered in his favor. The motion was allowed, and the plaintiffs appealed from the judgment thus entered. We transferred the case here on our own motion. G.L. c. 211A, § 10A.

For reasons discussed below, we hold that there was error in the proceedings before the tribunal, that the judgment should be reversed, and that the case should be remanded for further proceedings consistent with this opinion.

This action was commenced by a complaint entered in the Superior Court on March 30, 1978. In count one of the complaint George S. McMahon (the plaintiff) alleges that the defendant is a duly licensed optometrist practicing in the Commonwealth; that on or about June 25, 1975, and on diverse dates before and after that date, the defendant undertook to diagnose, care for, and treat the plaintiff for complaints concerning his eyes; that the defendant's services were based on a contractual agreement and in consideration of a fee to be paid by the plaintiff; that the defendant performed the diagnosis and treatment of the plaintiff in a negligent and careless manner in various respects, including particularly the defendant's alleged failure to diagnose the plaintiff's glaucoma and other conditions and complications; and that, as a result, the plaintiff suffered great pain, became permanently blind in one eye, lost substantial sight in his other eye, and incurred large expenses for medical care and attention. In count two, the plaintiff's wife adopted the allegations made by her husband in count one and added that, by reason of the injuries and blindness sustained by her husband, she suffered the loss of his services, society, affection, companionship, relations, and consortium.

The defendant by his answer generally denied all of the material allegations of the plaintiffs and further answered that "this action was not commenced within the time required by the laws made and provided therefor( )." See G.L. c. 260, § 4, as amended through St.1973, c. 777, §§ 3 and 4 (three-year limitation of malpractice actions against certain defendants for causes of action arising after January 1, 1974). A motion for summary judgment was heard and denied on the affidavit of the defendant that he had not dealt with the plaintiff after August 30, 1974, and the counter affidavit of the plaintiff that the defendant performed professional services for him during the summer of 1975. ² See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974) (summary judgment may be rendered if "there is no genuine issue as to any material fact").

1. Entitlement to appellate review. Before considering the plaintiffs' claim of errors by the tribunal, we deal with the defendant's claim that the plaintiffs are not properly before the full court because they have failed to exhaust judicial processes available to them in the trial court and have not filed a bond or bonds as ordered by the judge who sat with the tribunal.

The record shows that on May 26, 1978, which was three days after the tribunal hearing and about ten days before its decision, the judge entered an order that "(a) finding having been made for the defendant, it is ORDERED that the plaintiffs file a bond in the amount of Two thousand dollars ($2,000.00) within thirty (30) days if they wish to pursue their claim, otherwise the action is dismissed." The decision of the tribunal was not filed until June 6, 1978, and on that date the same judge entered an order identical to that of May 26, 1978, except that it required a bond in the amount of $4,000. The record indicates no attempt to reconcile these two orders. We do not attempt to determine whether the net effect of these orders was that the plaintiffs were required to file a bond of $2,000, $4,000, or $6,000, but we do express the belief that the litigants were entitled to a record which would not give rise to such doubts. The plaintiffs filed no bond or bonds, and neither they nor the defendant made any effort to have the doubt clarified. The failure to file a bond ultimately resulted in the entry of judgment as noted above.

The defendant states in his brief that the plaintiffs sought relief from the bond order from a single justice of the Appeals Court under G.L. c. 231, § 118, and that such relief was denied. Since this fact does not appear anywhere in the record of the appeal before us, we do not consider it further.

The defendant argues that the order or orders for the filing of a bond are interlocutory orders and that the plaintiffs may not neglect or refuse to comply with them and then, after judgment, seek appellate review of the orders in the Appeals Court. The principal question before us is whether the decision by the tribunal is tainted by legal error. ³ By statute, "the decision of the tribunal shall be admissible as evidence at a trial." G.L. c. 231, § 60B. We have not heretofore encumbered the right to seek review of such a decision by a requirement that the plaintiff first file the required bond and then try the case. If a plaintiff elects to have the alleged legal errors reviewed on appeal without first filing a bond and going to trial, knowing that he thereby runs the risk of being out of court entirely if his claim of error by the tribunal is decided adversely to him, we believe that he is entitled to such review. On the other hand, he may instead file his bond, go to trial, and, if he loses, have the alleged error by the tribunal reviewed along with any other alleged errors arising from the trial. It is for him to decide whether he is willing to assume the potentially fatal risks of pretrial review after failing or refusing to file a bond. In this case the plaintiffs have elected to assume those risks, as have plaintiffs in earlier cases. See Little v. Rosenthal, --- Mass. ---, --- ^A, 382 N.E.2d 1037 (1978); Paro v. Longwood Hosp., 373 Mass. 645, --- - --- ^B, 369 N.E.2d 985 (1977). Having done so, they cannot later elect to file the required bond or bonds if we hold that the tribunal did not commit error.

2. Sufficiency of evidence before the tribunal. One week after the denial of the defendant's motion for summary judgment, the action was referred to the medical malpractice tribunal convened under G.L. c. 231, § 60B. ⁴

At the hearing before the tribunal, counsel for the plaintiff made an offer of proof which included copies of the following documents: (a) the affidavits which had been filed by the plaintiff and the defendant on the motion for summary judgment described above, (b) an affidavit by Dr. Forrest Seavey, an optometrist, (c) a copy of a record of the Fairlawn Hospital for the period from January 26 to 30, 1978, when the plaintiff was confined there for surgery for a glaucoma condition in his left eye, and (d) a report by Dr. Eugene B. Epstein, an ophthalmologist, dated April 14, 1978, describing his first examination of the plaintiff on October 31, 1977, and his following treatment and surgery for the glaucoma condition on January 27, 1978. In addition, the tribunal also heard testimony by Dr. Epstein and the plaintiff.

We summarize briefly the proof offered by the plaintiff, without attempting to pass on the weight or credibility of any of the evidence offered. The plaintiff had been a patient of the defendant optometrist for a number of years. During that period of time the defendant had examined the plaintiff's eyes and prescribed eyeglasses for him a number of times, the last time being about May of 1974. The plaintiff returned to the defendant with complaints of blurred vision about March and in June, 1975. The defendant put some drops into his eyes and assured him that no problem existed. The plaintiff has no records relating to 1975, and he is relying on his memory in this regard. On October 31, 1977, the plaintiff was examined by Dr. Epstein for complaints of constant blurring in his left eye, frontal headaches, occasionally seeing halos around street lights, and watering of his eyes. He had bilateral glaucoma which was far advanced in his left eye. The optic disc of the left eye was irreversibly damaged. The glaucoma condition in the right eye had not advanced to the same degree as the left. Dr. Epstein performed surgery on the left eye for the glaucoma condition on January 27, 1978. The physical signs visible to a trained optometrist would have indicated the presence of glaucoma as early as June, 1975, and earlier, even in the absence of any complaints by a patient. Dr. Epstein stated in his report: "In my opinion, precious time has been lost by the optometrist not recognizing, or having an index of suspicion for Mr. McMahon's symptoms, which are...