O'Leary v. Nepomuceno

• Citation: 44 Mass.App.Ct. 683,693 N.E.2d 701
• Decision Date: 01 May 1998
• Docket Number: No. 97-P-0041,97-P-0041
• Parties: James F. O'LEARY & another 1 v. Oscar R. NEPOMUCENO & another. 2
• Court: Appeals Court of Massachusetts

Page 701

693 N.E.2d 701

44 Mass.App.Ct. 683

James F. O'LEARY & another ¹ v. Oscar R. NEPOMUCENO & another. ²

No. 97-P-0041.

Appeals Court of Massachusetts,

Hampden.

Argued Feb. 17, 1998.

Decided May 1, 1998.

Richard W. Jensen, Stoneham, for Oscar R. Nepomuceno.

John G. Bagley and Diane C. Fernald, Springfield, for Mercy Hospital, submitted a brief.

James F. O'Leary and Patricia C. O'Leary, pro se, submitted a brief.

Before BROWN, GILLERMAN and PORADA, JJ.

PORADA, Justice.

The plaintiffs appeal from the dismissal of their medical malpractice action based on their failure to post a $6,000 bond after a medical malpractice tribunal found in favor of the defendants and the tribunal judge denied their motion to reduce the bond from $6,000 to ten dollars. ³ Their claims of error are as follows: (1) the trial court failed to process their appeal from the judge's denial of their motion to reduce the bond; (2) their action was dismissed while their appeal from the denial of their motion to reduce the bond was pending; (3) the tribunal's finding in favor of the defendants was incorrect; and (4) several rulings of Superior Court judges pertaining to discovery and amendment of pleadings were improper. We address each of those claims.

1. Appeal from the motion judge's refusal to reduce the bond. The plaintiffs filed a timely appeal from the tribunal judge's denial of their motion to reduce the bond. The clerk's office was required to process the appeal pursuant to the procedures set forth in G.L. c. 261, § 27D, but failed to do so. Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 677-678, 602 N.E.2d 570 (1992). However, the failure to do so does not warrant reversal because we conclude that the tribunal judge was correct in denying the motion on the ground that no reasonable person would expend his own funds in pursuit of this action in light of the plaintiffs' offer of proof. Ibid.

2. Dismissal while appeal pending. The plaintiffs argue that the action should not have been dismissed while the plaintiffs' appeal from the denial of their motion to reduce the bond was pending. The defendants argue that the dismissal was proper because thirty days had elapsed from the tribunal judge's ruling on the motion to reduce the bond, see and compare St. Germain v. Pfeifer, 418 Mass. 511, 521-522, 637 N.E.2d 848 (1994), and a justice of the Superior Court had denied the plaintiffs' motion to stay the proceedings pending a ruling from the single justice of the Appeals Court on the plaintiffs' appeal.

Although the Supreme Judicial Court in the St. Germain case held that the thirty-day period for posting a bond begins to run from the tribunal judge's ruling on the motion to reduce the bond, id. at 522, 637 N.E.2d 848, there had been no ruling in that case by the tribunal judge on the plaintiffs' motion to reduce the bond and consequently no appeal could have been lodged. In the St. Germain case, the Supreme Judicial Court noted that "[a]ny other result would render the statute's bond reduction provisions for indigents meaningless." Id. Likewise, where the plaintiffs' only avenue of appeal is to the single justice of the Appeals Court, whose decision is final, G.L. c. 261, § 27D, to hold that the action may be dismissed for failure to post the bond while an appeal from the tribunal judge's denial of a motion to reduce the bond is pending, would render indigents' rights of appeal from a tribunal judge's decision on a motion to reduce the bond of little consequence. The judgment of dismissal should not have been entered.

3. Tribunal's findings. Based upon our review of the record, the tribunal properly found that the plaintiffs' offer of proof was insufficient to raise a legitimate question of liability. The plaintiffs contend that the defendant Nepomuceno failed to conform to good medical practice by not obtaining the plaintiff James F. O'Leary's informed consent to the surgery performed, specifically in failing to inform him that there was a viable alternative to the surgery performed, i.e., observation. However, the plaintiffs presented no expert testimony that there was a viable alternative. Instead they relied on the defendant Nepomuceno's own testimony in which he clearly indicated that observation was not a viable alternative, for without surgery serious injury or death might occur. In addition, plaintiff James F. O'Leary...