United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON JOINT MOTION OF THE DEFENDANTS,
TAS-CGSMC, INC., STEWART HEALTH CARE SYSTEM, LLC AND UHS OF
PEMBROKE, INC. D/B/A PEMBROKE HOSPITAL, TO DISMISS
PLAINTIFF'S COMPLAINT FOR FAILURE TO POST STATUTORY BOND
(#75) AND PLAINTIFF XINRONG ZHUANG'S MOTION TO OPPOSES
(SIC) THE JOINT MOTION OF THE SAID DEFENDANTS, THE TAS-CGSMC,
INC., STEWART HEALTH CARE SYSTEM, LLC AND UHS OF PEMBROKE,
INC., D/B/A PEMBROKE HOSPITAL, AND TO REQUEST THIS COURT DENY
DEFENDANTS' REQUEST TO DISMISS PLAINTIFF'S COMPLAINT
FOR FAILURE TO POST "STATUTORY" BOND, AND REQUEST
THIS COURT GRANT TO WAIVE OR REDUCE THE BOND, AND REQUEST FOR
PAGE KELLEY, Magistrate Judge.
plaintiff Xinrong Zhuang's medical malpractice claims
were referred to the state medical malpractice tribunal. On
July 10, 2015, the medical malpractice tribunal issued its
findings that as to Pembroke Hospital, Stewart Health Care
Group and Good Samaritan Medical Center, there was not
sufficient evidence to raise a legitimate question as to
liability appropriate for judicial inquiry. (##76-1;
XX-XX-XX-XX; 84-1, Exh. A.) Plaintiff was advised that he
could pursue his claims through the judicial process only
upon the filing of a bond in the amount of six-thousand
dollars ($6, 000.00). Id. He was also notified that
if the bond was not filed within thirty (30) days of the
tribunal's finding that the case would be dismissed.
Id. On October 20, 2015, Judge Giles, the judicial
member of the medical malpractice tribunal, denied
Plaintiff's request for a reduction of the bond amount
because Mr. Zhuang failed to furnish sufficient grounds for
such action. (##76-21; 85-1, Exh. A.)
December 16, 2015, UHS of Pembroke, Inc. d/b/a Pembroke
Hospital, Stewart Health Care System, LLC (misnamed in the
complaint as Steward Health Care Group) and TAS-CGSMC, Inc.
(misnamed in the complaint as Good Samaritan Medical Center)
filed a joint motion to dismiss Plaintiff's complaint for
failure post the statutory bond. (#75.) Mr. Zhuang opposed
Defendants' motion (#77), arguing that some important
medical records, specifically an atypical EKG taken at
Pembroke Hospital, had been concealed from him. On January
26, 2016, Plaintiff filed a motion to waive or reduce the
amount of the statutory bond. (#83.) Defendants UHS of
Pembroke, Inc. d/b/a Pembroke Hospital, TAS-CGSMC, Inc., and
Stewart Health Care System, LLC have filed oppositions to Mr.
Zhuang's motion. (##84, 85.)
outset, TAS-CGSMC, Inc., and Stewart Health Care System, LLC
challenge the court's jurisdiction to consider the motion
to reduce the bond. (#85 at 2.) According to Defendants, only
the single justice of the tribunal has the power to rule on a
request to lower the amount of the bond. Id. Since
Judge Giles has already considered and denied such a motion,
this court is said to have no jurisdiction to review the
issue. Defendants' position is without merit.
See Pallazola v. Rucker, 602 F.Supp. 459,
464 (D. Mass. 1984); Rua v. Glodis, C.A.
10-40251-FDS, #84-2, Amended Memorandum and Order on
Defendants' Motions to Dismiss submitted as #84-2, Exh.
having been said, Mr. Zhuang has not provided sufficient
evidence to establish his indigency. The Massachusetts
Supreme Judicial Court has determined that "a judge
should follow the standards set out in G.L. c. 261, Â§ 27A, in
determining indigency under G.L. c. 231, Â§ 60B."
Perez v. Bay State Ambulance & Hosp. Rental Serv.,
Inc., 413 Mass. 670, 678, 602 N.E.2d 570, 574 (1992)
(internal citation omitted). By statutory definition,
(a) a person who receives public assistance under aid to
families with dependent children, program of emergency aid
for elderly and disabled residents or veterans' benefits
programs or who receives assistance under Title XVI of the
Social Security Act or the medicaid program, 42 U.S.C.A.
1396, et seq.; (b) a person whose income, after taxes, is 125
per cent or less of the current poverty threshold established
annually by the Community Services Administration pursuant to
section 625 of the Economic Opportunity Act, as amended; or
(c) a person who is unable to pay the fees and costs of the
proceeding in which he is involved or is unable to do so
without depriving himself or his dependents of the
necessities of life, including food, shelter and clothing,
but an inmate shall not be adjudged indigent pursuant to
section 27C unless the inmate has complied with the
procedures set forth in section 29 and the court finds that
the inmate is incapable of making payments under the plans
set forth in said section 29.
Gen. L. c. 261, Â§ 27A. In his affidavit, Mr. Zhuang baldly
states that his income and earning capacity has been
diminished to zero for years, but no specifics are
provided. (#93 Â¶Â¶ 6-7.) He has not said whether
he has income from other sources, owns a house, has checking
or savings accounts, stocks, certificates of deposit, or the
like. The only other evidence Mr. Zhuang has submitted is a
copy of a letter from Chase rejecting his application for a
Visa Platinum credit card because his gross income did not
qualify him for the card. (#93-1.) Based on the sum of the
information provided, there was no error in finding that he
failed to provide sufficient grounds to support a reduction
in the bond.
even if Mr. Zhuang was indigent, at the medical malpractice
tribunal he failed to submit an expert opinion to support his
claims that Defendants deviated from the applicable standard
of care in treating him. (#84-1, Exh. B Â¶Â¶ 6-7.) "The
plaintiff has the burden of proving indigency and compliance
with the Denton standard." Rogers v. City
of Boston, 33 Mass.App.Ct. 328, 329, 599 N.E.2d 248, 249
(1992). The Denton standard provides that a court
should not exercise its discretion to reduce a bond
"unless the plaintiff has made a good faith effort to
present an offer of proof sufficient to meet the directed
verdict standard." Denton v. Beth Israel Hosp.,
392 Mass. 277, 281, 465 N.E.2d 779, 782 (1984). "If the
judge determines that the offer of proof construed most
favorably to the plaintiff, could not support a verdict for
the plaintiff, then he or she may refuse to reduce the
bond." Perez v. Bay State Ambulance & Hosp. Rental
Serv., Inc., 413 Mass. 670, 678, 602 N.E.2d 570, 574
(1992) (internal citations and quotation marks omitted).
Plaintiff's request to reduce the bond was properly
denied because, in the absence of an expert opinion, his
offer of proof failed to support his medical malpractice
claims. "It is only in exceptional cases
that a jury... may without the aid of expert medical opinion
determine whether the conduct of a physician toward a patient
is violative of the special duty which the law imposes."
Delaney v. Russo, 83 Mass.App.Ct. 1139, 989 N.E.2d
559 (Table), 2013 WL 3283734, at*1 (Mass.App.Ct. July 1,
2013) (internal citations and quotation marks omitted).
filing of the bond within thirty (30) days of the medical
malpractice tribunal finding is statutorily mandated.
See Mass. Gen. L. c. 231, Â§ 60B ("If a finding
is made for the defendant or defendants in the case the
plaintiff may pursue the claim through the usual judicial
process only upon filing bond in the amount of six thousand
dollars in the aggregate secured by cash or its equivalent
with the clerk of the court in which the case is pending,
payable to the defendant or defendants in the case for costs
assessed, including witness and experts fees and attorneys
fees if the plaintiff does not prevail in the final
judgment."). Failure to file the bond requires dismissal
of a plaintiff's claims. See Mass. Gen. L. c.
231, Â§ 60B ("If said bond is not posted within thirty
days of the tribunal's finding the action shall be
dismissed."). Mr. Zhuang was advised of his obligation
under the statute. It is undisputed that Plaintiff did not
file a bond within the requisite thirty days, and has not
filed a bond to date. In these circumstances, his medical
malpractice claims should be dismissed.
of the reasons stated, I RECOMMEND that the Joint Motion of
the Defendants, TAS-CGSMC, Inc., Stewart Health Care System,
LLC and UHS of Pembroke, Inc.d/b/a Pembroke Hospital, to
Dismiss Plaintiff's Complaint for Failure to Post
Statutory Bond (#75) be ALLOWED. I FURTHER RECOMMEND that
Plaintiff Xinrong Zhuang's Motion to Opposes (sic) the
Joint Motion of the said Defendants, the TAS-CGSMC, Inc.,
Stewart Health Care System, LLC and UHS of Pembroke, Inc.,
d/b/a Pembroke Hospital, and to Request this Court Deny
Defendants' Request to Dismiss Plaintiff's Complaint
for Failure to Post "Statutory" Bond, and Request
this Court Grant to Waive or Reduce the Bond, and Request for
Hearing (#83) be DENIED.
by District Judge
parties are hereby advised that any party who objects to this
recommendation must file specific written objections with the
Clerk of this Court within 14 days of the party's receipt
of this Report and Recommendation. The objections must
specifically identify the portion of the recommendation to
which objections are made and state the basis for such
objections. The parties are further advised that the United
States Court of Appeals for this Circuit has repeatedly
indicated that failure to comply with Rule 72(b), Fed. R.
Civ. P., shall preclude further appellate review.
SeeKeating v. Secretary of Health & Human
Servs., 848 F.2d 271 (1st Cir. 1988); United States
v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986);
Scott v. Schweiker, 702 F.2d 13, ...