United States District Court, D. Massachusetts
Talwani United States District Judge
the court are the following motions brought by Plaintiff: his
Motion for Leave to File Second Amended Complaint
[#35], Motion for Leave to Serve Four Interrogatories and
Two Requests for Production of Documents [#50], and
Motion for Leave to Extend Fact Discovery Deadlines
[#52]. For the reasons below, Plaintiff’s motion for
leave to file a second amended complaint is denied, but fact
discovery is extended to August 25, 2016, in the manner
described in this Order.
Motion for Leave to Amend
Motion for Leave to File Second Amended Complaint
[#35] is DENIED. Plaintiff seeks to amend his complaint to
change his claim for medical malpractice against Defendant
Rater-Count Three-to a claim for common law negligence.
See Am. Compl. [#30]; Proposed Second Am. Compl.
[#36-1]. Plaintiff’s motion comes well after February
28, 2016, the date after which “[e]xcept for good cause
shown, no motions seeking leave . . . to amend the pleadings
or assert new claims or defenses may be filed.”
Scheduling Order [#29]. The court finds that Plaintiff has
not established good cause for the late amendment.
argues that counsel learned from the May 4, 2016 deposition
of Michael Rater that there was no physician-patient
relationship between Plaintiff and Dr. Rater. Where “an
employer retains a physician to examine employees, generally
no physician-patient relationship exists between the employee
and the doctor.” Bratt v. Int’l Bus. Machs.
Corp., 467 N.E.2d 126, 136 n.21 (Mass. 1984). The facts
as to the absence of a physician-patient relationship do not
appear, however, to have been in dispute. Amended Complaint
¶¶ 30-31 [#30] (alleging that Atrius Health, Inc.
(“Atrius”) ordered Plaintiff to undergo a
psychiatric examination by Dr. Rater, a psychiatrist selected
by Atrius); Answer Def. Atrius Health, Inc. & Christopher
Joseph ¶¶ 30-31 [#34] (admitting that Atrius
contacted SCOPE medical to arrange for an independent medical
examination, and that that examination was performed by Dr.
Rater); Answer Def. Michael Rater ¶¶ 30-31 [#31]
(admitting that he performed the requested independent
medical examination). That the deposition did not occur until
May 4, 2016, and thus provides no justification for the late
argues that the amendment would constitute a mere change in
the name of the cause of action and would not require the
taking of any additional discovery. The amendment, however,
would require the convening of a new medical malpractice
tribunal and delay the progress of this case. On November 23,
2015, this court referred the medical malpractice claim to
the Suffolk County Superior Court for a medical malpractice
tribunal. Order [#24]. The tribunal set a hearing to take
place on May 11, 2016 and a deadline of May 4, 2016, for the
Plaintiff to file its Offer of Proof. Opp’n Mot. Leave
File Second Am. Compl., Ex. B [#49-2] (Order of Tribunal
Hearing). Plaintiff did not file his Offer of Proof by May 4,
and on May 10, 2016, the day before the tribunal hearing was
to take place, Plaintiff advised Defendant Rater that he
would be dismissing the medical malpractice claim, obviating
the need for the scheduled hearing. Id. Ex. E
[#49-5] (Email from A. Khorsand to R. Bouley).
Plaintiff were allowed to amend his claim, the medical
malpractice tribunal process would have to begin anew, as a
claim of general professional negligence against a medical
professional acting in his or her capacity as a medical
professional requires referral to a tribunal -even if the
claim is not a medical malpractice claim, and even if there
is no physician-patient relationship between the plaintiff
and the medical professional. See Santos v. Kim, 706
N.E.2d 658, 660-61 (Mass. 1999) (referral to medical
malpractice tribunal does not depend on presence of
physician-patient relationship where suit is brought against
medical provider in his capacity as a medical provider). The
law appears settled that even the amended claim against
Defendant Rater would require referral to the medical
malpractice tribunal. See, e.g., Lambley v.
Kameny, 682 N.E.2d 907, 913 (Mass. App. Ct. 1997)
(holding that it was proper to refer to medical malpractice
tribunal job applicant’s suit against psychiatrist who
examined applicant at prospective employer’s request).
these reasons, Plaintiff is unable to show good cause and his
motion to amend is DENIED.
Motions for Additional Discovery
Motion for Leave to Serve Four Interrogatories and Two
Requests for Production of Documents [#50] is ALLOWED IN
PART and DENIED IN PART for the reasons stated in open court.
may propound the following modified Interrogatory 26:
Identify only by age all Atrius employees who worked under
Defendant Joseph who were allowed to work remotely during
days on which one-on-one meetings with Joseph were scheduled,
from 2010 to the present.
may not propound Interrogatory 27 but can obtain that
information from the Rule 30(b)(6) deposition of Atrius.
may propound the following modified Interrogatory 28:
Identify all Atrius Technology Department employees-by age,
and FMLA/ADA request status-of any FMLA and/or ADA work
accommodations where there were ...