Brissette v. Crantz

Decision Date03 December 1986
Citation500 N.E.2d 828,23 Mass.App.Ct. 213
PartiesWilliam N. BRISSETTE et al. 1 v. Frank R. CRANTZ et al. 2
CourtAppeals Court of Massachusetts

William J. Brisk, Boston, for plaintiffs.

Carol A. Griffin, Boston, for St. Luke's Hosp. of Middleborough.

Mary Dacey White, Cambridge, for Frank R. Crantz.

Before WARNER, KAPLAN and FINE, JJ.

WARNER, Justice.

On June 17, 1983, the plaintiffs filed a complaint against the defendants in the Superior Court alleging medical malpractice arising out of an incident on July 10, 1980, at the emergency room of the defendant hospital. The plaintiffs' counsel was allowed to withdraw his appearance on July 20, 1984. Service of process had not then been made on either defendant. Successor counsel for the plaintiffs filed an appearance on February 21, 1985. Service was made on the defendant hospital on February 25, 1985, and on the defendant doctor about March 20, 1985. No responsive pleadings were filed. The plaintiffs appeal from a judgment of dismissal entered on June 12, 1985, following the allowance of the defendants' motions to dismiss for insufficiency of service of process brought pursuant to Mass.R.Civ.P. 4, 365 Mass. 733 (1974), and 12(b)(5), 365 Mass. 755 (1974).

We begin by noting that the defendants' motions and the judgment should have been on the ground of failure to prosecute under Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974). Ahern v. Warner, 16 Mass.App.Ct. 223, 224-225, 450 N.E.2d 662 (1983). "Although the defendants' motion[s] and the ... judgment were mislabeled ... we treat the motion[s] according to [their] obvious character rather than [their] label[s]." Id. at 225, 450 N.E.2d 662.

There is no provision in the rules of civil procedure specifying when service of process must be made. See Mass.R.Civ.P 4(a), 365 Mass. 733 (1974). 3 The dismissal of an action on the ground of delay in the service of process is within the sound discretion of the judge. Ahern v. Warner, supra at 227, 450 N.E.2d 662. Mass.R.Civ.P. 41(b)(2). We measure the exercise of that discretion by familiar principles. "The mere passage of time does not require a dismissal; it must constitute prejudice to the defendants, afford the plaintiffs an unfair tactical advantage, or involve harassment of the defendants. Delay brings into question the plaintiffs' good faith and due diligence, which, in the absence of extreme delay, must be balanced against the prejudice caused to the defendants.... There is no reason why there must be a dismissal as matter of law where the action has been timely commenced but there has been a delay in service of the summons" (citations and footnote omitted). School Comm. of Holyoke v. Duprey, 8 Mass.App.Ct. 58, 60-62, 391 N.E.2d 925 (1979), and cases cited. Ahern v. Warner, supra 16 Mass.App. at 227, 450 N.E.2d 662.

In support of their motions to dismiss, each defendant filed a brief and an affidavit. The plaintiffs also filed a brief and an affidavit. The motion was heard and decided on these materials and after oral argument; we do not have a transcript of the argument. The plaintiffs made no claim in the Superior Court, nor do they do so on appeal, that they acted with good faith and due diligence in making service of process. What appears in the record allows the assumption that the plaintiffs did not so act, at least up to the time successor counsel entered the case. We proceed then to the question of the balance of the plaintiffs' conduct against the prejudice shown to have been caused to the defendants by the delay.

We do not think that the delays of approximately twenty and twenty-one months in service on the hospital and doctor, respectively, may, without more, support a presumption of prejudice. See Ahern v. Warner, supra at 228 & n. 5, 450 N.E.2d 662, and cases cited. The judge does not appear to have found to the contrary. In his brief memorandum of decision, he said: "The mere passage of time does not require a dismissal, unless it constitutes substantial prejudice to the defendants. The first notice to [the defendants] of a possible claim came 4 1/2 years after the alleged injury. This is prejudice to the defendant[s]. Dismissal is within the sound discretion of the court." While further explication of the rationale for the judge's decision would have been helpful, we cannot say that he abused his discretion in allowing the motions. We do not substitute our judgment for that of the judge, and we cannot say "that no conscientious judge, acting intelligently, could honestly have taken the view expressed by him." Davis v. Boston Elev. Ry., 235 Mass. 482, 502, 126 N.E. 841 (1920). Commonwealth v. Medeiros, 395 Mass. 336, 351, 479 N.E.2d 1371 (1985). See Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641, 488 N.E.2d 1 (1986), and cases cited. The judge's weighing of the relevant factors and his conclusion as to imbalance involves the quintessence of the exercise of discretion.

On the basis of the complaint and the materials presented to him in connection with the motions to dismiss, the judge could have considered in combination the following circumstances in addition to the delay in service: (1) The plaintiffs' claims were not known to either defendant until service of process was made, in each case over four and one-half years after the incident giving rise to the claims. 4 (2) Neither the defendant doctor nor the emergency room nurse listed on the hospital record had any memory of the incident 5; no one else, other than the plaintiff patient, was alleged to have any direct knowledge. (3) The need to conduct reasonably prompt investigation of a claim of negligence in emergency room treatment might well be more urgent than in the case of inpatient treatment.

This case is distinguishable from Ahern v. Warner, 16 Mass.App.Ct. 223, 450 N.E.2d 662 (1983). There, the plaintiff filed a complaint against her neighbors for failure properly to maintain a retaining wall. Service of process was not made until some twenty-two months later. A Superior Court judge dismissed the action because he concluded that it would have been barred by the statute of limitations at the time service was made and that the defendants were thereby prejudiced. Id. at 224, 450 N.E.2d 662. We reversed, holding that the record did not show that the statute of limitations had expired at the time service was made. Id. at 225, 450 N.E.2d 662. We also gave direction in the event that, on remand, the statute of limitations was determined to have expired as to certain causes of action (for violation of a...

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