Murray v. Beth Isr. Deaconess Med. Ctr., Inc.
| Decision Date | 22 February 2022 |
| Docket Number | 20-P-1388 |
| Citation | 100 Mass.App.Ct. 1125,182 N.E.3d 345 (Table) |
| Parties | Mary Jean MURRAY, personal representative, v. BETH ISRAEL DEACONESS MEDICAL CENTER, INC., & others. |
| Court | Appeals Court of Massachusetts |
Mary Jean Murray brought the underlying medical malpractice action in the Superior Court as the executor of her late mother's (decedent) estate. Murray appeals from the denial of her motion to set aside the judgment dismissing the claims against Beth Israel Deaconess Medical Center, Ron Alterman, and Taylor Chace (together, BI defendants) for Murray's failure to timely respond to interrogatories. She also appeals from the grant of summary judgment for two sets of defendants: (1) Pedro Nin-Martinez, Kindred Healthcare, Inc., and Kindred Hospital Boston,4 and (2) Drs. Roderick McCoy and Reda Safieddine. We affirm the dismissal of the claims against the BI defendants and the grant of summary judgment for Nin-Martinez. We affirm in part and reverse in part the grant of summary judgment for Kindred and Dr. McCoy. We reverse the grant of summary judgment for Dr. Safieddine.
1. Dismissal of BI defendants. Under Mass. R. Civ. P. 33 (a) (4), as appearing in 436 Mass. 1401 (2002), a party may apply for entry of final judgment if the opposing party does not respond to interrogatories within forty days after service of the final request for answers. The BI defendants first served interrogatories on Murray in June 2017 through her then counsel. On February 5, 2019, the BI defendants served their final requests for answers on Murray at her home address, her attorney having since withdrawn. On March 21, 2019, when Murray still had not answered, the BI defendants filed applications for entry of final judgment, which the judge allowed on March 28. The judge later denied Murray's motion under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), to set aside the judgment,5 as well as Murray's motion for reconsideration of that denial.
To prevail under rule 60 (b), Murray had the burden to show that her failure to timely answer the interrogatories stemmed from "excusable neglect" and not from her "own carelessness." Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass. 155, 158 (1987), quoting Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 228 (1979). The judge's denial of the motion "will not be overturned, except upon a showing of a clear abuse of discretion." Scannell, supra. An abuse of discretion does not exist "simply because a reviewing court might have reached a different result"; rather, so long as the judge acted "within the bounds of [his] discretion," our "inquiry is at an end." Id. at 160, quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641 (1986).
The thrust of Murray's claim of excusable neglect is that she was unaware of the interrogatories because her former attorney never provided them to her. This claim is unavailing because the BI defendants sent the final requests to Murray's home address, after her attorney withdrew. Contrary to Murray's assertion, the BI defendants were not obliged to provide proof of mailing, such as a certified mail receipt. It was sufficient that, as reflected on the certificates of service, the final requests were mailed, postage prepaid, to Murray's correct home address. See Mass. R. Civ. P. 5 (b), 365 Mass. 745 (1974) (). Moreover, at a status conference on March 22, 2019, after the BI defendants had already applied for final judgment, the judge advised Murray to contact the BI defendants’ attorney to "figure out what may have happened" to the interrogatories that were mailed to her home. The judge also encouraged Murray and the BI defendants to try to resolve the issue before he acted on the application for final judgment. Yet Murray failed to contact the BI defendants’ attorney and still had not answered the interrogatories by the time final judgment entered on March 28. Murray's rule 60 (b) motion also failed to show, or even attempt to show, that she had a meritorious claim, as was required to establish excusable neglect. See Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 806 (2002). For all these reasons, the judge acted within his discretion to deny the rule 60 (b) motion. Cf. Hermanson v. Szafarowicz, 457 Mass. 39, 47 (2010) ; Scannell, 401 Mass. at 158-159.
The judge likewise acted within his discretion to deny Murray's motion for reconsideration. Murray argues that she should have prevailed on this motion because she provided new evidence in the form of affidavits from her family members attesting that they lived with Murray and did not see the BI defendants’ final requests for answers or applications for judgment in the mail. But nothing in these affidavits was new information that Murray could not have provided earlier. "In such circumstances, the judge was not required even to consider the motion for reconsideration, let alone to allow it." Clamp-All Corp., 53 Mass. App. Ct. at 808.
2. Summary judgment. The remaining defendants originally moved for summary judgment on the ground that Murray had failed to designate an expert who would testify at trial. In opposing those motions, Murray provided a two-page letter from Dr. John Merritt, a physician licensed in Florida, and identified him as her trial expert. Concluding that the letter did not contain the information required by Mass. R. Civ. P. 26 (b) (4), 365 Mass. 772 (1974), a judge ordered Murray to provide a supplemental expert disclosure within thirty days.6 The judge denied the defendants’ summary judgment motions without prejudice to renewal upon receipt of the supplemental disclosure.
Murray then provided an eighteen-page updated opinion from Dr. Merritt (the opinion). The defendants again moved for summary judgment, this time on the ground that the opinion did not raise a genuine issue for trial. A second judge agreed, finding that the opinion still "fail[ed] to supply the designated information" required by rule 26 (b) (4). In particular, the judge found that the opinion "fail[ed] to establish the standard of care applicable to each defendant."
On appeal the defendants variously suggest that judgment in their favor was proper because the opinion contains conclusory assertions that are inadequate to meet the requirements of rule 26 (b) (4). That is not the issue before us, however. The purpose of rule 26 (b) (4) is notice -- i.e., "to facilitate the fair exchange of information about critical witnesses and to prevent unfair surprise." Kace v. Liang, 472 Mass. 630, 636 (2015). Even a "barebones" disclosure can be sufficient in certain circumstances to provide notice. See Larkin v. Dedham Med. Assocs., 93 Mass. App. Ct. 661, 667 (2018). Here, the defendants did not move to exclude Dr. Merritt from testifying at trial on the ground that his opinion did not give notice of the substance of his anticipated testimony. See, e.g., Barron v. Fidelity Magellan Fund, 57 Mass. App. Ct. 507, 519-520 (2003) ; Atlas Tack Corp. v. Donabed, 47 Mass. App. Ct. 221, 223-224 (1999). Instead, they moved for summary judgment. Therefore, the issue before us is whether the defendants met their burden to show that proof of an essential element of Murray's case was "unlikely to be forthcoming at trial." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
We agree with the defendants that the opinion is oftentimes conclusory and is deficient in several respects, as we detail below. But in determining whether an expert opinion creates an issue for trial, "[a] reasonable measure of doubt may be tolerated because ‘all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.’ " Noble v. Goodyear Tire & Rubber Co., 34 Mass. App. Ct. 397, 402 (1993), quoting Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991). That said, "[t]he expert opinion must be rooted in the record evidence and not be based on speculation, conjecture, or assumptions not supported by the evidence." Washington v. Cranmer, 86 Mass. App. Ct. 674, 675 (2014). In medical malpractice cases, the expert opinion must be adequate to raise triable issues on whether the defendant breached the applicable standard of care and whether that breach caused injury. See Palandjian v. Foster, 446 Mass. 100, 104 (2006). With these principles in mind, we consider separately each allegation in the opinion as to each defendant.
Nin-Martinez. The opinion contains two allegations against Nin-Martinez, a respiratory therapist: (1) he placed the decedent on improper ventilator settings and failed to wean her from the ventilator "in an appropriate way"; and (2) he improperly replaced her soft tracheostomy
cuff with a hard cuff. We agree with Nin-Martinez that he was entitled to summary judgment as to both allegations.
Nin-Martinez was acting under the orders of a physician. Of course there may be times when a respiratory therapist commits malpractice in carrying out a physician's orders. Here, the opinion states that the expert reviewed the medical records and then concludes that "[t]he average qualified respiratory therapist should have ensured that [the decedent] receive[d] proper ventilator settings, ha[d] been weaned from the ventilator in an appropriate way, and never had a hard water filled balloon cuff placed in her tracheostomy
." Although this might be read as an implicit conclusion that Nin-Martinez committed malpractice notwithstanding that he followed a physician's orders, we read the decision in Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 93 (2010), to require that the opinion "contain an assertion that [a respiratory therapist], confronted with these circumstances, would deviate from the governing standard of care if [he or] she failed to override" the physician's orders or take other steps before complying with them. See also Rahilly v. North Adams...
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