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Wittkowski v. Spencer

United States District Court, D. Massachusetts

April 20, 2017

WITTKOWSKI, Plaintiff,
v.
SPENCER, ET AL., Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton United States District Judge.

         This case arises out of the purportedly inadequate medical treatment of pro se plaintiff Jojo Wittkowski (“plaintiff”), who is currently incarcerated at Old Colony Correctional Center in Bridgewater, Massachusetts.

         I. Background

         Plaintiff is a transgender (male to female) woman. In March, 2014, she filed a complaint alleging that, by declining to treat her gender identity disorder, defendants, who are healthcare personnel employed by the Massachusetts Department of Corrections, 1) violated the Eighth and Fourteenth Amendments under 42 U.S.C. § 1983 and 2) committed “medical negligence and malpractice” in violation of Massachusetts law.

         In September, 2015, plaintiff submitted an amended complaint that identified nine defendants. Since then, claims against four defendants have been dismissed by this Court. The remaining defendants are Steven Levine, Robert Deiner, Joel Andrade, Neal Norcliffe and Thomas Grobleski.

         In December, 2016, Deiner, Andrade, Groblewski and Levine (collectively, “the subject defendants”) filed a joint motion to refer plaintiff's medical malpractice claim to a medical malpractice tribunal. Plaintiff opposes that motion but, for the following reasons, it will be allowed.

         II. Motion for Referral to Medical Malpractice Tribunal

         A. Legal Standard

         Massachusetts law provides a screening mechanism for medical malpractice claims. It requires that, before proceeding in court, such claims

shall be heard by a tribunal . . . [which] shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result.

         M.G.L. c. 231, § 60B. If the tribunal finds in favor of the defendant, the plaintiff is permitted to pursue the case in court only after satisfying a $6, 000 bond requirement. Id.

         Referring Massachusetts state law claims to a medical malpractice tribunal is appropriate when such claims are in federal court pursuant to either diversity or supplemental jurisdiction. See Feinstein v. Massachusetts Gen. Hosp., 643 F.2d 880, 883 (1st Cir. 1981) (holding that medical malpractice claims under Massachusetts law that are in federal court based on diversity jurisdiction must be referred to a medical malpractice tribunal); Turner v. Sullivan, 937 F.Supp. 79, 80 (D. Mass. 1996) (finding that medical malpractice claims under Massachusetts law that are in federal court under supplemental subject matter jurisdiction must be referred to a medical malpractice tribunal).

         B. Analysis

         Pursuant to M.G.L. c. 231, § 60B, the subject defendants move for the Court to refer plaintiff's medical malpractice claims to the Massachusetts Superior Court Department of the Trial Court so that it may convene a medical malpractice tribunal. Plaintiff opposes that motion on the grounds that 1) this Court denied defendants' motion to dismiss the claim at issue and 2) she is ...


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