United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANTS NAPHCARE, INC.
AND DR. JAMES CHEVERIE'S MOTION FOR REFERRAL TO A MEDICAL
MALPRACTICE TRIBUNAL (DOCKET ENTRY # 21)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.
Naphcare, Inc. (“Naphcare”) and James Cheverie,
M.D. (“Dr. Cheverie”) (collectively:
“defendants”) seek to refer the negligence and
medical malpractice claims to Massachusetts Superior Court to
convene a medical malpractice tribunal. (Docket Entry ## 21,
22, 48). Plaintiff John Horan (“plaintiff”)
submits that defendants waived their right to proceed before
a tribunal by not seeking reconsideration of the court's
October 2016 denial of the motion (Docket Entry # 21) without
prejudice or raising the issue thereafter until a December
18, 2017 scheduling conference. (Docket Entry # 46).
amended complaint seeks damages for a personal injury
plaintiff sustained during his incarceration at the Suffolk
County House of Corrections (“SCHOC”). (Docket
Entry # 29, ¶ 1). The claims in the eight-count amended
complaint pertain to inadequate medical treatment that
plaintiff received during his incarceration at SCHOC. (Docket
Entry # 29). Prior to his December 2012 incarceration at
SCHOC, plaintiff suffered from osteomyelitis and received
intravenous antimicrobial therapy administered through a
peripherally inserted central catheter (“PICC
line”). (Docket Entry # 29, ¶¶ 14-15, 17,
19). He continued to suffer from the condition throughout his
incarceration at SCHOC. Dr. Cheverie oversaw plaintiff's
medical care at SCHOC. (Docket Entry # 29). During
plaintiff's incarceration, Naphcare was under a contract
to provide medical services to SCHOC. (Docket Entry ## 29,
30, ¶¶ 9).
the recommendation of George Abraham, M.D. (“Dr.
Abraham”), the physician who treated plaintiff before
he entered SCHOC, Dr. Cheverie determined that plaintiff did
not need the PICC line and could instead receive oral
antibiotics for the condition. (Docket Entry # 29, ¶
21). Upon the removal of the PICC line in January 2013,
plaintiff's condition worsened ultimately leading to the
amputation of his right, second toe. (Docket Entry # 29,
¶¶ 25, 29, 32).
filed this action in February 2016 and, after securing an
extension of time, defendants filed an answer on June 29,
2016. On July 19, 2016, defendants filed the motion for a
referral of the claims to Massachusetts Superior Court. On
August 3, 2016, plaintiff filed a notice assenting to the
motion. On October 12, 2016, the court denied the motion to
transfer without prejudice, allowed a motion to amend the
complaint, and instructed plaintiff to file the amended
complaint. The court also stated it “will first address
the federal constitutional and statutory claims
only.” (Docket Entry # 28) (emphasis added).
than two months later, plaintiff filed the amended complaint
in early January 2017. It sets out various civil rights and
constitutional claims under 42 U.S.C. § 1983 and
Massachusetts General Laws chapter 12, section 11I in counts
I, II, and III. The remaining claims consist of medical
malpractice (Count IV), negligence (Count V), negligent
infliction of emotional distress (Count VI), intentional
infliction of emotional distress (Count VII), and assault and
battery (Count VIII).
January 2017, defendant Andrea Cabral (“Cabral”),
Suffolk County Sheriff during the relevant time period, filed
a motion to dismiss the amended complaint. In an effort to
progress the case, defendants' counsel telephoned the
court in late August 2017 inquiring about the status of the
motion to dismiss. (Docket Entry # 48-1). On September 29,
2017, the court allowed the motion, dismissed Cabral, and
inadvertently closed the case. On November 14, 2017,
defendants' counsel contacted the court about the closure
and requested a status conference. (Docket Entry # 48-1). A
few days later, the court reopened the case and scheduled the
December 18, 2017 scheduling conference for the remaining
parties. On December 13, 2017, the remaining parties,
including defendants, filed a joint statement setting out a
proposed discovery schedule pursuant to LR. 16.1. The next
day, defendants' counsel advised plaintiff's counsel
that she anticipated renewing the motion to refer the
negligence and medical malpractice claims to a tribunal at
the scheduling conference and, accordingly, did not wish to
cancel the conference in the event the parties consented to
proceed before a magistrate judge. (Docket Entry # 48-1). At
the December 18, 2017 initial scheduling conference, the
court adopted the proposed schedule. During the conference,
defendants renewed the motion to refer the claims to a
tribunal. (Docket Entry # 48-1). On the same day, the parties
consented to the jurisdiction of this court.
March 16, 2018, this court set a status conference. At the
April 26, 2018 status conference, defendants again renewed
the motion to refer the aforementioned claims to a tribunal.
(Docket Entry # 47).
argue that referral of the negligence and medical malpractice
claims to a tribunal is mandatory under state law. (Docket
Entry ## 22, 48). Plaintiff contends that defendants waived
their right to proceed before a tribunal based on their
inaction. (Docket Entry # 46).
law mandates a referral of all “action[s] for
malpractice, error or mistake, ” Mass. Gen. Laws ch.
231, § 60B (“section 60B”), to a medical
malpractice tribunal, including claims in federal court
pursuant to diversity or supplemental jurisdiction. See
Wittkowski v. Spencer, 249 F.Supp.3d 582, 583 (D. Mass.
2017); see generally Washington v. Gagliani, 75
N.E.3d 582, 582-83 (Mass. 2017). In the case at bar,
jurisdiction is grounded on a federal question with
supplemental jurisdiction over the state law claims. (Docket
Entry ## 1, 29, ¶¶ 5); 28 U.S.C. §§ 1331,
1367(a); Municipality of Mayaguez v. Corporacion Para el
Desarrollo del Oeste, Inc., 726 F.3d 8, 13 (1st Cir.
2013) (“‘federal-question jurisdiction . . . is
invoked by and large by plaintiffs pleading a cause of action
created by federal law, ' such as an action brought under
42 U.S.C. § 1983”).
60B's purpose “is to screen complaints in order
‘to discourage frivolous claims whose defense would
tend to increase premium charges for medical malpractice
insurance.'” Ruggiero v. Giamarco, 901
N.E.2d 1233, 1237 (Mass. App. Ct. 2009). The tribunal
accomplishes this goal by “‘distinguishing
between cases of tortious malpractice and those involving
“merely an unfortunate medical
result.”'” Vasa v. Compass Medical,
P.C., 921 N.E.2d 963, 966 (Mass. 2010). For actions
falling into the latter category when the tribunal finds in
the defendant's favor, the plaintiff must post a bond to
proceed “through the usual judicial process.”
Mass. Gen. Laws ch. 231, § 60B; see also Rua v.
Glodis, Civil Action No. 10-40251-FDS, 2012 WL 2244817,
at *3 (D. Mass. June 14, 2012) (noting that “‘a
plaintiff may, in effect, “waive” the tribunal by
declining to present an offer of proof, ' and thus
‘assume[ ] voluntarily the financial burden of the
tribunal requirement applies to all treatment
related claims, whether in tort, in contract, or under G.L.
c. 93A.” Ruggiero, 901 N.E.2d at 1237
(emphasis added). “[T]he defendant's status as a
health care provider” and the subject matter of the
claim, namely, one “which directly implicate[s] the
professional judgment or competence of a [health care]
provider, ” determines whether “tribunal
screening is required.” Vasa, 921 N.E.2d at
967; accord Koltin v. Beth Israel Deaconess Medical
Ctr., 817 N.E.2d 809, 811 (Mass. App. Ct. 2004). The
negligence and medical malpractice claims uniformly implicate
the professional judgment of Dr. Cheverie, who rendered
medical treatment to plaintiff for his osteomyelitis during
his incarceration at SCHOC. More specifically, they involve
Dr. Cheverie's decision to remove the PICC line and treat
plaintiff with oral antibiotics. The decision purportedly
contravened the recommendations of Dr. Abraham. ...