Walker, et al. v. Boston Medical Center Corp., et al. (Lawyers Weekly No. 12-081-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2015-01733-BLS1 KAMYRA WALKER and another,1 1 Anne O’ Rourke 2 MDF Transcription, LLC and Richard J. Fagan. on behalf of themselves and other similarly situated vs. BOSTON MEDICAL CENTER CORP. and others 2 MEMORANDUM OF DECISION AND ORDER ON DEFENDANT BOSTON MEDICAL CENTER CORP.’S MOTION FOR SUMMARY JUDGMENT In March 2014, defendant Boston Medical Center, Corp. (BMC) learned that another health care provider had inadvertently accessed a BMC patient’s medical information on a website maintained by defendant MDF Transcriptions, LLC (MDF), a medical transcription company used by both BMC and thisother provider. It sent a letter to all its patients who had records that had been transcribed by MDF informingthem that there might have been unauthorized access to their medical information. After receiving this letter, the plaintiffs Kamyra Walker and Anne O’Rourke,filedthisputative classaction against BMC, MDF, and Richard Fagan, MDF’s owner and manager. They assertthat the defendants are liableto them, and all other similarly situated BMC patients,for failing to ensure that their medical information was kept confidential. The case is before the court on BMC’smotionfor summary judgment. BMCargues, among other things, that the plaintiffs lack standing to maintain the claims asserted2 against it.3 For the reasons that follow, the motion isALLOWED. 3 BMC also argues that the complaint fails to state a claim on which relief may be granted. Having found that the plaintiffs lack standing to bring their claims, the court does not reach this issue. 4 “FTP, or file transfer protocol, is a protocol for exchanging files over any computer network that supports the TCP/IP protocol (such as the Internet or an intranet). SRI Int’l Inc. v. Internet Sec. Sys., 647 F. Supp. 2d 323, 332 n.2 (D. Del. 2009). 5 Plaintiffs note that JosephCumillus, BMC’s 30(b)(6) deponent, stated in his deposition: “it was concerning to me that this information was on an FTP site that wasn’t password protected.” The court understands this to refer BACKGROUND For several years, certain BMC medical practices used MDF to transcribe their physicians’ audio recordedpatientnotes. The transcriptions were available through a “file transfer protocol” (FTP or .ftp) site maintained by MDF.4 On March 4, 2014, Pam Bronson of Access Sports Medicine(ASM), anotherMDF customer, telephoned BMC. She informed BMC that she saw a BMC transcription record when she accessed MDF’s transcription portalusing her ASM user name and password. In response, BMC contacted MDF,and MDF took down the FTP site. Shortly thereafter, BMC terminated its relationship with MDF and notified patients, including the plaintiffs, of what had occurred. The notification letter sent to the plaintiffs informed them that their patient records from office visits with physicians “were inadvertently made accessible to […]
Walker v. Collyer, et al. (Lawyers Weekly No. 11-051-14)
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 12‑P‑1898 Appeals Court CHARLES G. WALKER vs. JENNIFER COLLYER, administratrix,[1] & others.[2] No. 12‑P‑1898. Suffolk. September 13, 2013. ‑ May 23, 2014. Present: Cohen, Katzmann, & Agnes, JJ. Arbitration, Appeal of order compelling arbitration, Authority of arbitrator, Arbitrable question. Contract, Arbitration. Nursing Home. Medical Malpractice, Contract with doctor. Estoppel. Agency, Liability of agent, Independent contractor. Civil action commenced in the Superior Court Department on January 25, 2012. The case was heard by Carol S. Ball, J. Curtis R. Diedrich for the plaintiff. Scott D. Peterson for Jennifer Collyer. John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief. KATZMANN, J. Charles Walker, a physician, seeks to avoid being compelled to arbitrate a medical malpractice claim brought by the representative of a deceased patient, Karl Collyer. Walker treated Karl at The Oaks Nursing Center (The Oaks or the facility), a facility at which Walker practices medicine and serves as subacute rehabilitation (rehab) program medical director. Karl and the facility signed an arbitration agreement covering disputes arising from his treatment; Walker did not sign the agreement. In the Superior Court, Walker challenged an arbitrator’s order compelling him to participate in an arbitration proceeding commenced pursuant to the agreement. He now appeals from the judgment entered in the Superior Court affirming the arbitrator’s decision ordering Walker to arbitration. We conclude that the question whether Walker was bound by the arbitration agreement despite being a nonsignatory was a question for the court and not the arbitrator. We further conclude, based upon the undisputed material facts, that Walker is not bound by the agreement. While our courts have determined that under some circumstances a party who did not sign an arbitration agreement can take advantage of an agreement signed by an allied party to compel a signatory to arbitrate, we have not decided the question in the converse that is posed by this case: Can a signatory to an arbitration agreement compel a nonsignatory to arbitrate by virtue of the agreement that he has not signed? Other courts, particularly the Federal courts, have considered such situations, enumerating the circumstances in which a signatory can compel a nonsignatory to arbitrate. We find persuasive the framework laid out clearly by the Federal courts and hold that Collyer, as administratrix of Karl’s […]
Commonwealth v. Walker (Lawyers Weekly No. 10-056-14)
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‑11445 COMMONWEALTH vs. HENRY WALKER. March 21, 2014. Sex Offender. Constitutional Law, Sex offender. Due Process of Law, Sex offender. Evidence, Sex offender, Expert opinion. Practice, Civil, Sex offender, Findings by judge. Words, “Menace.” Following a jury-waived trial, a judge in the Superior Court determined that the defendant is a sexually dangerous person and committed him to the Massachusetts Treatment Center pursuant to G. L. c. 123A, § 14 (d).[1] The defendant’s past sexual offenses include exhibitionism, a noncontact offense, and, in at least two instances, exhibitionism accompanied by a contact offense, e.g., indecent assault and battery. The judge found that the defendant has a mental abnormality, specifically crediting the testimony of one of the experts who testified at trial that the defendant “will likely engage in future noncontact offenses, but that there is certainly a significant possibility of future contact offenses.” He also found that the defendant’s mental abnormality “is one that predisposes him to sexual acts to a degree that makes him a menace to the health and safety of other persons.” The Appeals Court affirmed, see Commonwealth v. Walker, 83 Mass. App. Ct. 901 (2013), and we granted the defendant’s application for further appellate review. In Commonwealth v. Suave, 460 Mass. 582, 585-586 (2011) (Suave), we considered, for the first time, “whether G. L. c. 123A, properly construed, permits a finding of sexual dangerousness based on an individual’s history of committing noncontact sexual offenses and his likelihood of committing only noncontact offenses in the future.” We concluded that a finding that a defendant is likely to commit noncontact sexual offenses could support a determination that the defendant is a “menace” only where the Commonwealth has shown that “the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.” Id. at 588. Because we had not yet decided the Suave case at the time of the defendant’s trial, the judge did not have the benefit of, and did not make his findings regarding noncontact offenses pursuant to, that decision. He did not, in other words, make any finding that the defendant is a “menace” because his predicted future noncontact offenses would be likely to instill in […]
Commonwealth v. Walker (Lawyers Weekly No. 10-158-13)
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‑11157 COMMONWEALTH vs. STEVIE WALKER. Suffolk. April 5, 2013. ‑ August 12, 2013. Present: Ireland, C.J., Cordy, Botsford, Duffly, & Lenk, JJ. Homicide. Practice, Criminal, Arraignment, Instructions to jury, Motion to suppress, Objections to jury instructions, Voluntariness of statement, Admissions and confessions, Capital case. Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Voluntariness of statement. Waiver. Mental Impairment. Intoxication. Malice. Indictment found and returned in the Superior Court Department on December 29, 2005. A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J.; the case was tried before Christine M. McEvoy, J. Elaine Pourinski for the defendant. Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. On December 19, 2007, a jury convicted the defendant, Stevie Walker, of murder in the first degree on the theory of extreme atrocity or cruelty.[1] Represented by new counsel on appeal, the defendant argues error in the denial of his motion to suppress statements and the instructions to the jury. We affirm the order denying his suppression motion and affirm his conviction. We discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Motion to suppress. a. Background and standard of review. Prior to trial, the defendant moved to suppress statements he made on November 6, 2005, to police on his arrival at a Boston police station as well as during a tape recorded interview with homicide detectives shortly thereafter, claiming that all of his statements were obtained in violation of various State and Federal constitutional rights. Specifically, as relevant here, the defendant argued that he had not knowingly, willingly, and intelligently waived his Miranda rights; his statements were not voluntarily made due to his impaired physical and mental condition; he did not knowingly, willingly, and intelligently waive his right to a prompt arraignment pursuant to Commonwealth v. Rosario, 422 Mass. 48, 56 (1996) (Rosario);[2] and police intentionally violated his statutory right pursuant to G. L. c. 276, § 33A, to make a telephone call. After conducting an evidentiary hearing, the motion judge, who was not the trial judge, rejected the defendant’s arguments and denied his motion with one exception not relevant here.[3] “In reviewing a [decision] on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct […]
Commonwealth v. Walker (Lawyers Weekly No. 11-024-13)
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 11‑P‑1687 Appeals Court COMMONWEALTH vs. HENRY WALKER. No. 11‑P‑1687. February 12, 2013. Sex Offender. Practice, Civil, Sex offender. Evidence, Sex offender, Expert opinion. Witness, Expert. After a jury-waived trial, a judge of the Superior Court found the defendant to be a sexually dangerous person, as defined in G. L. c. 123A, § 1,[1] and committed him pursuant to § 14(d) thereof. On appeal, the defendant challenges (1) the sufficiency of the evidence supporting the judge’s conclusion that the defendant represents a menace to the health and safety of others, and (2) the propriety of certain testimony of the Commonwealth’s expert witness. The thrust of the defendant’s appeal concerns the nature of the defendant’s predicted sexual offenses together with any resulting harm.[2] The defendant avers that the judge’s conclusions, viewed in their entirety, suggest a risk of reoffending limited to acts of exhibitionism, the injury therefrom consisting of shock and alarm to the public — in contravention of Commonwealth v. Suave, 460 Mass. 582, 587-588 (2011). While the judge did not have the benefit of Suave at the time of trial, we discern no reason to disturb his extensive findings or ultimate conclusion. We affirm. “In response to a challenge to the sufficiency of the evidence, we inspect a finding under the settled standard: ‘whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G. L. c. 123A, § 1.’” Commonwealth v. Husband, 82 Mass. App. Ct. 1, 4 (2012), quoting from Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J., concurring). “Weighing and crediting the testimony of witnesses during proceedings under G. L. c. 123A ‘are for the trier of fact, and we will not substitute our judgment for that of the trier of fact.’” Commonwealth v. Sargent, 449 Mass. 576, 583 (2007), quoting from Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 291 (2004). With regard to the second element of the Commonwealth’s prima facie case (see note 1, supra), a determination that the defendant suffers from a “[m]ental abnormality” turns in relevant part on whether his disorder makes him “a menace to the health and safety of other persons.” G. L. c. 123A, § 1, as inserted by […]