Blanchard, et al. v. Steward Carney Hospital, Inc., et al. (Lawyers Weekly No. 10-082-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12141 LYNNE BLANCHARD & others[1] vs. STEWARD CARNEY HOSPITAL, INC., & others.[2] Suffolk. November 7, 2016. – May 23, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3] “Anti-SLAPP” Statute. Constitutional Law, Right to petition government. Practice, Civil, Motion to dismiss. Words, “Based on.” Civil action commenced in the Superior Court Department on May 24, 2013. Special motions to dismiss were heard by Linda E. Giles, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Jeffrey A. Dretler (Joseph W. Ambash also present) for the defendants. Dahlia C. Rudavsky (Ellen J. Messing also present) for the plaintiffs. Donald J. Siegel & Paige W. McKissock, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. LENK, J. In the spring of 2011, following reports of abuse at the adolescent psychiatric unit (unit) of Steward Carney Hospital, Inc., then president of the hospital, William Walczak, fired all of the registered nurses and mental health counsellors who worked in the unit. Walczak subsequently issued statements, both to the hospital’s employees and to the Boston Globe Newspaper Co. (Boston Globe), arguably to the effect that the nurses had been fired based in part on their culpability for the incidents that took place at the unit. The plaintiffs, nine of the nurses who had been fired, then filed suit against the defendants for, among other things, defamation. The hospital defendants[4] responded by filing a special motion to dismiss the defamation claim pursuant to G. L. c. 231, § 59H, the “anti-SLAPP” statute. A Superior Court judge denied the motion, concluding that the hospital defendants had failed to meet their threshold burden of showing that the claim was based solely on their petitioning activity. The hospital defendants filed an interlocutory appeal in the Appeals Court as of right. See Fabre v. Walton, 436 Mass. 517, 521–522 (2002). The Appeals Court then reversed the motion judge’s decision in part. See Blanchard v. Steward Carney Hosp., Inc., 89 Mass. App. Ct. 97, 98 (2016). We granted the parties’ applications for further appellate review. We conclude that a portion of the plaintiff nurses’ defamation claim is based solely on the hospital defendants’ petitioning activity. The hospital defendants as special movants thus having satisfied in […]
Murby, et al. v. Children’s Hospital Corporation (Lawyers Weekly No. 12-166-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01213-BLS2 ____________________ GUSTAVE H. MURBY, and Others1 v. CHILDREN’S HOSPITAL CORPORATION, doing business as Boston Children’s Hospital, and Others2 ____________________ MEMORANDUM AND ORDER ALLOWING FURTHER MOTION BY CHILDREN’S HOSPITAL CORPORATION TO DISMISS THIS ACTION Plaintiffs brought suit in an effort to stop Boston Children’s Hospital from erecting a new clinical building on the site of the Prouty Garden, which they and many others value as a quiet sanctuary for Hospital patients and their families. In their amended complaint Plaintiffs allege that the Hospital illegally began site preparation and other construction work required for its proposed Boston Children’s Clinical Building (the “BCCB”) without first obtaining approval from the Department of Public Health (“DPH”) under the determination of need (“DoN”) law, G.L. c. 111, §§ 25B-25G. Plaintiffs also allege that the Hospital’s DoN application for the BCCB project improperly excluded the costs of certain renovation projects that the Hospital has already started or completed at its main campus in the Longwood medical area of Boston, and of a planned expansion of the Hospital’s Waltham campus. The Court previously ordered that all claims against defendants Suffolk Construction Company, Inc., Turner Construction Company, and the Commissioner of the Massachusetts Department of Public Health be dismissed without prejudice because they are not proper or necessary parties. The Hospital now moves to dismiss the rest of the case on the grounds that it became moot when DPH approved the Hospital’s DoN application. The Court will ALLOW that motion, and dismiss this case without prejudice, because it agrees that the claims asserted in this action are now moot. It will also declare the rights of the 1 Anne C. Gamble, Walter J. Gamble, M.D., Stephen Gellis, M.D., Loring Conant, Jr., M.D., Louise Conant, Brian Greenberg, Peggy Greenberg, Karen d’Amato, Neil Dinkin, Christine Barensfeld, and John W. Hagerman. 2 Suffolk Construction Company, Inc., Turner Construction Company, and Commissioner of the Massachusetts Department of Public Health. – 2 – parties with respect to one of the legal issues raised in the amended complaint. The Court takes judicial notice of the two DPH letter decisions that are attached to the Hospital’s memorandum of law: the October 27, 2016, letter decision in which DPH approved the Hospital’s DoN application, and the June 3, 2016, letter decision in which DPH rejected claims that certain ongoing or now completed renovations at the Longwood campus were part of the BCCB project and thus required DoN approval.3 The amended complaint asserts three general categories of claims, all of which are now either moot, must be pursued as part of the c. 30A appeal from the final decision by DPH, or raise a pure question of law that can […]
Categories: News Tags: 1216616, Children's, Corporation, Hospital, Lawyers, Murby, Weekly
Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 10-025-16)
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-11875 BERNARD E. BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] Middlesex. November 3, 2015. – February 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Hospital, Appointment to staff. Anti-Discrimination Law, Race, Employment. Employment, Discrimination. Contract, Employment, With hospital, Performance and breach. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert R. Hamel, Jr. (Megan E. Kures with him) for the defendants. Denzil D. McKenzie (James E. Clancy, IV, with him) for the plaintiff. James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. LENK, J. Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin. See G. L. c. 151B, § 4. Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 151B, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a “false reason,”[2] or pretext, for terminating their employment. In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer’s motion for summary judgment. In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment. We address, in particular, three concerns: whether the evidence on which an employee relies to survive a defendant’s motion for summary judgment need show not only that the defendant’s stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff’s burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence. The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize. The plaintiff has a medical degree from the University of the West Indies, and practiced medicine outside the United States until […]
Blanchard, et al. v. Steward Carney Hospital, Inc., et al. (Lawyers Weekly No. 11-020-16)
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 14-P-717 Appeals Court LYNNE BLANCHARD & others[1] vs. STEWARD CARNEY HOSPITAL, INC., & others.[2] No. 14-P-717. Suffolk. January 14, 2015. – February 24, 2016. Present: Katzmann, Sullivan, & Blake, JJ. “Anti-SLAPP” Statute. Constitutional Law, Right to petition government. Practice, Civil, Standing, Motion to dismiss. Civil action commenced in the Superior Court Department on May 24, 2013. A special motion to dismiss was heard by Linda E. Giles, J. Jeffrey A. Dretler (Katharine A. Crawford & Joseph W. Ambash with him) for the defendants. Dahlia C. Rudavsky for the plaintiffs. KATZMANN, J. In this case we consider whether the defendants’ special motion to dismiss the plaintiffs’ defamation claim pursuant to G. L. c. 231, § 59H, widely known as the “anti-SLAPP”[3] statute, was properly denied. The central question is whether, during a period of crisis when Steward Carney Hospital (Carney Hospital or hospital) faced the loss of its license to operate an in-patient adolescent psychiatric unit (unit) because of purported patient abuse and neglect, statements quoted in a newspaper made by the president of the hospital, and an electronic mail message (e-mail) the president sent to hospital staff announcing the dismissal of unnamed employees in the unit under review, constituted protected petitioning activity. A judge in the Superior Court denied the motion because she found that the statements upon which the claim was based did not qualify as protected petitioning activity and, therefore, the defendants could not seek protection of the anti-SLAPP statute. We conclude that the statements quoted in the newspaper constitute protected petitioning activity, but that the internal e-mail does not. Accordingly, we affirm in part and reverse in part. Background. The key facts of this case, as derived from the judge’s decision below, the newspaper articles at issue, affidavits by those involved in the investigation, testimony in a related arbitration proceeding (see note 4, infra), and relevant reports, are as follows. The plaintiffs are all registered nurses (RNs) who had been working in the unit for a number of years. In April, 2011, complaints were made concerning four incidents of alleged patient abuse or neglect within the unit. None of the alleged incidents involved abuse or neglect of a patient by any of the plaintiffs (or any other RN). The incidents were reported to the Department of […]
Roe No. 1, et al. v. Children’s Hospital Medical Center, et al. (Lawyers Weekly No. 10-164-14)
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-11533 ROBERT ROE No. 1 & others[1] vs. CHILDREN’S HOSPITAL MEDICAL CENTER & others.[2] Suffolk. April 8, 2014. – October 1, 2014. Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Child Abuse. Negligence, Hospital, Employer, Duty to prevent harm. Practice, Civil, Complaint, Amendment of complaint, Dismissal. Civil action commenced in the Superior Court Department on March 28, 2011. A motion to dismiss was heard by Merita A. Hopkins, J. The Supreme Judicial Court granted an application for direct appellate review. Mark F. Itzkowitz (Carmen L. Durso with him) for the plaintiffs. Gail M. Ryan (John P. Ryan with her) for Children’s Hospital Medical Center. The following submitted briefs for amici curiae: John J. Barter for Professional Liability Foundation, Ltd. Darrell L. Heckman, of Ohio, & Ninamary Buba Maginnis, of Kentucky, for National Center for Victims of Crime. J. Michael Conley, Jeffrey S. Beeler, Thomas R. Murphy, & Kimberly A. Alley for Massachusetts Academy of Trial Attorneys. CORDY, J. This case requires us to decide whether a Massachusetts hospital employer owes a legally cognizable duty of care to future patients of a doctor who has left the hospital’s employ and resumed practicing medicine in the employ of a different hospital in another State. We conclude that such a duty is not cognizable in the circumstances presented here, where the hospital does not have the type of special relationship either with its former employee, or with any of his prospective patients, that would create such a duty. Consequently, we affirm the judgment entered in the Superior Court dismissing the complaint for failing to state a claim on which relief may be granted. 1. Background. We recite the relevant facts as drawn from the plaintiffs’ complaint, which we assume to be true for the purposes of our review. Nader v. Citron, 372 Mass. 96, 98 (1977). The defendant, Children’s Hospital Medical Center (Children’s Hospital), is a fully licensed hospital located in Boston. In 1966 it hired Melvin Levine as a pediatric physician. Levine held that position until leaving Children’s Hospital’s employ in 1985.[3] On leaving Children’s Hospital, Levine relocated to North Carolina, where he obtained a license to practice medicine and became employed as a pediatrician at the University of North Carolina School of Medicine (UNC). Twenty-four years later, in 2009, amid […]
Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 11-118-14)
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 11-P-1583 Appeals Court BERNARD BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] No. 11-P-1583 Middlesex. November 26, 2012. – September 24, 2014. Present: Berry, Kafker, Meade, Sikora, & Wolohojian, JJ.[2] Hospital, Appointment to staff. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Employment, With hospital, Performance and breach, Interference with contractual relations. Libel and Slander. Unlawful Interference. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. Sara Discepolo for the plaintiff. Robert R. Hamel, Jr., for the defendants. WOLOHOJIAN, J. The plaintiff, Dr. Bernard Bulwer, an experienced physician and a black man from Belize, became a first-year resident at Mount Auburn Hospital (hospital) in August, 2005. He joined the residency program under a one-year contract, with the possibility of advancement to a second year of residency upon successful completion of the first. Eight months into the program, he was told that the hospital would not extend a second-year contract to him but that he would be allowed to continue his residency through the end of his first year. One month later, however, he was terminated. This suit followed, in which Bulwer alleges discrimination and retaliation based on his race and national origin in violation of G. L. c. 151B, breach of contract, defamation, and tortious interference with his contractual relationship with the hospital.[3] Summary judgment entered in favor of the defendants on all counts. We conclude that the summary judgment record sufficed to entitle Bulwer to have a jury decide his discrimination and breach of contract claims, but that summary judgment was properly entered on his remaining claims. Accordingly, we affirm in part and reverse in part. 1. The summary judgment record. In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting from Attorney Gen. v. Bailey, […]
Estate of Gavin v. Tewksbury State Hospital, et al. (Lawyers Weekly No. 10-082-14)
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‑11422 ESTATE OF STEVEN GAVIN vs. TEWKSBURY STATE HOSPITAL & another.[1] Middlesex. January 6, 2014. ‑ May 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Massachusetts Tort Claims Act. Wrongful Death. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Wrongful death, Standing. Negligence, Wrongful death. Executor and Administrator, Governmental claims. Words, “Claimant.” Civil action commenced in the Superior Court Department on March 24, 2011. A motion to dismiss was heard by Garry V. Inge, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert S. Sinsheimer for the plaintiff. Mark P. Sutliff, Assistant Attorney General, for the defendants. J. Michael Conley, Thomas R. Murphy, & Elizabeth N. Mulvey, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. BOTSFORD, J. The estate of Steven Gavin (estate) commenced this action for wrongful death in the Superior Court against the Commonwealth and Tewksbury State Hospital (hospital) under the Massachusetts Tort Claims Act (act), G. L. c. 258. The estate seeks to recover damages on account of the death of Steven Gavin (decedent), a death allegedly caused by negligent conduct on the part of hospital staff members. The primary issue before us is whether the statutory requirements for presentment of a claim under the act, see G. L. c. 258, § 4 (§ 4), were met when the presentment was made by the estate (through its attorney), and not by the duly appointed executor or administrator of the estate. Ruling on the defendants’ motion to dismiss the complaint, a judge concluded that the presentment requirement was not met in these circumstances, and allowed the motion. A divided panel of the Appeals Court affirmed. Estate of Gavin v. Tewksbury State Hosp., 83 Mass. App. Ct. 139 (2013). The case is before us on further appellate review. We conclude that in the circumstances of this case, the presentment made by the estate was proper. We therefore vacate the judgment of the Superior Court. 1. Background. The decedent died on August 11, 2008. In the weeks preceding his death, he was receiving inpatient care at the hospital for Huntington’s disease; the estate claims that his death was caused by a bacterial infection due to the improper reinsertion of […]
South End Accident Sends Police Officer, Motorist, to Hospital
Two people were injured in a car accident between a police cruiser and another vehicle in the South End on Tuesday night. South End Patch News
Brothers Injured in Bombing Recovering Together at Spaulding Rehabilitation Hospital
Brothers JP and Paul Norden reunited last Friday at Spaulding Rehabilitation Hospital, where they are both undergoing care for injuries sustained in the April 15 Boston Marathon bombings. Used to seeing each other several times a day before the explosion that left them both without one leg, the brothers were glad for the reunion, though it will be short-lived—Paul is expected to be released from Spaulding soon for out-patient care, while JP will remain behind. “I can’t even describe…” Paul, 31, said when asked what it was like to be back with his brother. “I didn’t see him for 14 days, and it was so tough. I see him every day of my life. So it’s just amazing to be back to normal.” JP, 33, said of their reunion: “It’s the best thing ever.” At a press conference held Monday at Spaulding’s new location in the Charlestown Navy Yard, the Stoneham natives spoke about the many emotions they had experienced over the past month, the ups and downs of rehabilitation and their special bond as brothers—which comes with a healthy side of competition. Paul even joked that the hospital that treated him after the bombing, Beth Israel Deaconess Medical Center, was better than Brigham and Women’s Hospital, which treated JP. (Both brothers had nothing but good things to say about their respective medical teams.) At Spaulding, the brothers are able to visit each other’s rooms, and Paul said, once he’s been discharged, he plans to visit JP every day. “Unfortunately, I do believe it does help [to be recovering together]. I’d rather it not be that way, but it is that way,” Paul said. “We’re going to work hard and get through this.” The pair also said they were grateful for the overwhelming support of their family, friends, doctors and first responders—as well as people they had never met who have rallied around them to raise funds or just to say hi. “The managers must go nuts here [at Spaulding]—we’ve got 30 visitors a day,” JP said. “They’re the ones that keep us positive.” “I’ve had Facebook people from Britain asking how I’m doing. It’s really been nice to know that people care,” he added. The brothers said they are concerned about friends who were also injured in the bombing but that they were focusing on their own recovery. “We think of all the other friends of ours that got hurt, but we have to focus on ourselves getting better first,” Paul said. JP and Paul Norden were spectators, waiting for a friend to finish the Boston Marathon, when the two explosions went off. The moments after the explosions […]
Categories: Arrests Tags: Bombing, Brothers, Hospital, Injured, Recovering, Rehabilitation, Spaulding, Together
‘We Have Never Needed Them More’: Boston Celebrates Opening of New Rehabilitation Hospital
At the grand opening of a new, state-of-the-art facility where clinicians will help people adapt to amputations and other traumatic injuries, Boston Mayor Tom Menino and others celebrated the strength of the city of Boston and the strength of the human spirit Saturday night. Benefactors, hospital staff and city officials gathered Saturday night at a tent set up outside the new nine-story Spaulding Rehabilitation Hospital in the Charlestown Navy Yard. Since its founding in 1970, Spaulding has provided in- and out-patient services for people recovering from a range of issues, including spinal cord and brain injuries, strokes, amputations and burns. Some of the hospital’s clinicians were waiting at the finish line when the two bombs went off at the Boston Marathon on Monday, and the staff will be there in their new facility when several of the people injured in the blasts begin the process of healing and adapting to their devastating injuries. With construction of the new, 132-bed hospital, “Spaulding will carry on a proud tradition, which says that strength can be recovered, damage can be repaired and defeat is never an option,” Spaulding President David Storto said. “This new hospital will be a place of hope and of healing, of learning and innovation and of grace and compassion.” He mentioned specifically the role of the hospital in light of recent events. “To those who survived the marathon bombings with catastrophic injuries: Rest assured that Spaulding and our extremely talented and dedicated and compassionate staff will provide the best rehabilitation care available in the world, and rest assured that we will work with them and their families to achieve a quality of life that they likely cannot even imagine at this early juncture of their recovery. As President Obama said at the interfaith service a few days ago, many of them will walk again and will run again.” The mayor, who was himself a patient at Spaulding this past fall, spoke at the gala about the staff’s compassion and endurance with patients. “We’re so lucky to have Spaulding in our city,” he said. Several speakers at the event mentioned the importance of celebrating the new hospital after such a difficult week in Boston. “It’s wonderful to be able to gather together as a community after the tragic events of this week. What better setting than in this place where healing of body and soul are at the heart of our mission and where we can all find our strength together,” said Scott Schoen, chairman of the Spaulding Board of Trustees. “Like all of you here this evening I am saddened and angered by the violence that was brought to […]
Categories: Arrests Tags: boston, Celebrates, Hospital, More, Needed, Never, Opening, Rehabilitation, Them