Keene v. Brigham & Women's Hospital
| Decision Date | 30 September 1997 |
| Docket Number | 951081 |
| Citation | 1997 MBAR 060 |
| Parties | Dylan Keene1 v. Brigham & Women's Hospital, Inc. et al.2 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 7 Mass. L. Rptr. 473
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): CONNOLLY
This case involves a medical malpractice claim brought by the plaintiffs, Dylan Keene, through his parents and next friends Kathleen and Robert Keene, against the defendants, Brigham & Women's Hospital, Inc., Harvard Community Health Plan and James R. Cooley, M.D. Through the course of discovery it was discovered that one or more records pertaining to Dylan Keene's care were missing from his medical records. On May 3, 1996, the court ordered Brigham & Women's Hospital to resurrect the missing records or, in the alternative, determine what might substitute for those records. The plaintiffs now move this court, pursuant to Mass.R.Civ.P. 37(b)(2)(C), to default Brigham & Women's Hospital and strike their charitable immunity affirmative defense for failure to comply with the court's order. As grounds for their motion, the plaintiffs contend that without the aforementioned records the plaintiffs cannot prove the alleged negligence nor determine which doctors or nurses were responsible for Dylan Keene's care.
Dylan Keene (Dylan), was born at Brigham & Women's Hospital (BWH) at or about 1: 07 a.m. on May 15, 1986. Shortly after his birth, Dylan exhibited signs of respiratory distress. Accordingly, blood tests were taken and showed Beta-Hemolytic Streptococci Group B. By twenty-four hours of age, Dylan was in septic shock and by twenty-six hours of age he began having seizures. Subsequent EEGs, CT imaging, and physical examination showed severe brain damage. It was later determined that Dylan contracted meningitis which allegedly resulted in severe developmental problems.
On May 12, 1995, Dylan's parents, Kathleen and Robert Keene (the plaintiffs), instituted this action on Dylan's behalf against BWH, Harvard Community Health Plan (HCHP), Dr. Roger Hinkson (Dr. Hinkson), and Dr. Lesley Furlong (Dr. Furlong).3
Sometime after the litigation began, it was discovered that a record or records, ordinarily found within an infant's set of medical records, was missing from Dylan's file.4 More specifically, the record or records missing pertain to the care and treatment that Dylan received approximately eighteen to twenty hours after his birth.5
Once it was determined that one or more of the records from Dylan's file was missing, the focus of the litigation switched to the pediatric care given to Dylan during the period following his birth. As a result, the parties stipulated to the dismissal of Dr. Hinkson and Dr. Furlong in or about April of 1996. The plaintiffs then received leave to amend their complaint and add Dr. Cooley, a pediatrician, as a defendant.
In hopes of determining the names of Dylan's caregivers after his birth, plaintiffs served a notice to take a deposition pursuant to Mass.R.Civ.P. 30(b)(6) on October 18, 1995, requesting the names, addresses, licenses, and board certifications of any doctor, nurse, or any other person involved in the care of Dylan on May 15-16, 1986. To date, the hospital can, at best, identify those persons working on May 15-16, 1986, but cannot identify the persons who had responsibility for Dylan's care, and what care, if any, was rendered to him. All persons from whom discovery has been sought have indicated that they have no memory of Dylan or his care, since they do not have his medical records to refresh or jog their memories.
On December 15, 1995, the plaintiffs noticed a 30(b)(6) deposition at BWH for January 16, 1996. Schedule A of that deposition sought information as to the caregivers of Dylan between May 14-16, 1986.
On or about January 15, 1996, BWH filed a motion for a protective order concerning the plaintiff's notice of 30(b)(6) depositions. The motion for protective order was denied on February 23, 1996. Thereafter, on February 27, 1996, the plaintiffs again noticed the depositions from October of 1995 and December of 1995. The defendants then produced two witnesses, Leanna Hatton and Loretta Kehoe, who were employed at the BWH in the Medical Records Services Department and who may have had knowledge concerning the identification of doctors and nurses involved in treating Dylan and his mother. The depositions of these two women, however, failed to identify the doctors and nurses involved in the critical time period.
In March 1996, BWH's department began a search for the missing records by retrieving the medical records of every child born at BWH on May 14-16, 1986. This search resulted in the records of 83 children. These records were inspected, however, none contained the records of Dylan. The scope of the search was broadened to include every in-patient, both children and adults, discharged from BWH in 1986. That search also failed to uncover the location of the missing record or records.
On May 3, 1996, this court held a hearing on the plaintiffs' April 12, 1996 motion for sanctions. The court ordered BWH to resurrect the missing records or, in the alternative, determine what might substitute for those missing records.
As a result of the unsuccessful attempt by the hospital to locate the records, coupled with the plaintiff's strong need for such information, the plaintiffs filed this motion for a default judgment against the hospital, and as a further sanction, have asked the court to take away the hospital's defense of charitable immunity.
Entry of default judgments is committed to the sound discretion of the trial judge. Bucchiere v. New England Tel. & Tel Co., 396 Mass. 639, 641 (1986); Riley v. Davison Construction Co., 381 Mass. 432, 441 (1980); Greenleaf v. Massachusetts Bay Transp. Auth., 22 Mass.App.Ct. 426, 430-31 (1986). The reviewing court will not find that discretion abused "unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice." Greenleaf v. Massachusetts Bay Transp Auth., 22 Mass.App.Ct. at 429. The factors to be taken into consideration include "the relative clarity with which it appears that the judgment was unjust, the relative fault of the parties, and the balance to be struck." Id., citing Restatement (Second) of Judgments 74, comment g (1982). "The consideration to be balanced in deciding a default question for failure to make discovery are, on one hand, a concern about giving parties their day in court, and, on the other, not so blunting the rules that they may be ignored 'with impunity.' " Id. at 429-30.
Massachusetts Rules of Civil Procedure 37(b)(2)(B) and (C) provide that:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]
Mass.R.Civ.P. 37 was amended in 1984. One of the most significant differences between the amended rule and the prior rule is that the latter required a willful failure to comply. "The purpose of the amendment was 'to increase compliance with discovery orders, by making it easier for parties to achieve, and judges to award, sanctions for failure to comply with a discovery order.' " Roxse Homes Ltd. Partnership v. Roxse Homes Inc., 399 Mass. 401, 405-06 (1987), quoting Greenleaf v. Massachusetts Bay Transp. Auth., supra, 430-31 (1986).
In interpreting Fed.R.Civ.P. 37(b), which is similar to its Massachusetts counterpart, the United States Supreme Court has held that it is within the limits of due process to allow the sanction of default where failure to comply is not due to an inability to comply. See Societe Internationale Pour Participations Industrielles Et Commerciales S.A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). See also National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
Although small in number, a few Massachusetts courts have dealt with the issue of sanctioning a party by default for failure to obey a discovery order.6 In Greenleaf v. Massachusetts Bay Transp. Auth., supra, the Appeals Court held that it was within the judge's discretion to order that the MBTA be defaulted as to liability for its persistent failure to comply with discovery procedures. In that case, the plaintiff filed a tort action as a result of an accident in which the doors of an MBTA train closed on the plaintiff injuring her. The plaintiff filed interrogatories and a request for production of documents on the MBTA who objected to the production of documents as burdensome. Thereafter, the plaintiff was granted a motion to compel production of documents. The due date for production passed and no documents were produced by the MBTA. As a result, the plaintiff moved for a judgment by default on the issue of liability which was allowed. The MBTA then moved to vacate the default judgment which was allowed and a date was set for production of the requested documents. After numerous failed...
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