Faircloth, et al. v. DiLillo (Lawyers Weekly No. 10-145-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11269 AALIYAH FAIRCLOTH & another[1] vs. LOUIS DiLILLO. Essex. April 2, 2013. ‑ August 5, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Medical Malpractice, Bond. Negligence, Medical malpractice. Practice, Civil, Bond, Judicial discretion. Bond. Civil action commenced in the Superior Court Department on May 7, 2009. Following a hearing by a medical malpractice tribunal, a motion for reduction of bond was heard by Timothy Q. Feeley, J. A proceeding for interlocutory review was heard in the Appeals Court by James R. Milkey, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Elizabeth N. Mulvey for the plaintiffs. Stephanie M. Simmons for the defendant. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief. GANTS, J. General Laws c. 231, § 60B (§ 60B), provides that “[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth . . . and an attorney authorized to practice law in the commonwealth.” Where a medical malpractice tribunal determines that there is not sufficient evidence to raise a legitimate question of a defendant’s liability appropriate for judicial inquiry, “the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of [$ 6,000] . . . 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.” However, “[u]pon motion filed by the plaintiff, and a determination by the court that the plaintiff is indigent,” the judge who participated in the tribunal “may reduce the amount of the bond but may not eliminate the requirement thereof.” Id. The issue on appeal is whether a judge may refuse to reduce the amount of such a bond solely because he or she believes the plaintiffs’ attorney is paying or advancing the court costs and expenses of litigation on behalf of the indigent client, including the cost of the bond. We conclude that this is not a factor that a judge may consider in deciding whether to reduce the amount […]