Verdicts

No Appeal from Merit Tribunal's Decision

The Appeals Court of Massachusetts, Essex, denied a dentist's attempt to obtain judicial review of a medical malpractice tribunal's report that found the plaintiff's claim had merit, as Massachusetts's law does not permit interlocutory appeal of such proceedings absent judicial permission. Ruggiero v. Giamarco, 73 Mass.App.Ct. 743 (Mass.App.Ct., 2/26/09).

Plaintiff Ann Marie Ruggiero filed a small claims action in the Peabody Massachusetts District Court alleging negligence on the part of Matteo L. Giamarco, D.M.D. Dr. Giamarco moved to refer the case to the Essex County Superior Court for a medical malpractice tribunal to review its the merits, pursuant to General Law (G.L.) c. 231 ' 60B. The tribunal concluded that the complaint had merit. Dr. Giamarco then filed a petition with a single justice of the appeals court seeking interlocutory review of the tribunal's decision, as permitted by G.L. c. 231 ' 118 (first par.). The single justice denied the dentist's petition and declined to grant leave to take an interlocutory appeal. Dr. Giamarco next sought to appeal directly from the tribunal order entered in the Superior Court.

The appellate court noted that the purpose of the statute establishing the medical tribunal was to screen complaints so as to discourage frivolous claims. The statute makes no provision for interlocutory appellate appraisal of the tribunal's decision, although it does allow a health care provider aggrieved by a tribunal decision to obtain interlocutory appellate review of that decision in the discretion of a single justice. G.L. c. 231 ' 118. However, here, having failed to obtain leave from the single justice, Dr. Giamarco contended that he was nonetheless entitled to appellate review as of right under the doctrine of present execution. Under that doctrine, immediate appeal of an interlocutory order is permitted if the order appealed from is “collateral” to the merits of the controversy and interferes with rights in a way that cannot be remedied on appeal from the final judgment. See Fabre v. Walton, 436 Mass. 517 (2002). The appeals court found, however, that the tribunal's decision that Ruggiero's complaint and offer of proof raised a legitimate question of liability appropriate for judicial inquiry was not “collateral” to the merits of her action. It was, in fact, at the heart of the merits of that action. Therefore, the court dismissed the appeal.

Attorney Who Sued Opponent for 'Outrageous' Deposition Question Must Pay

A New Jersey appellate court upheld the award of attorney fees to an attorney who was sued for allegedly going too far in her deposition questioning of a medical malpractice plaintiff. Rabinowitz v. Wahrenberger, — A.2d —-, 2009 WL 722720 (N.J.Super.A.D., 3/20/09) (NO. A-1626-07T1).

The parents of a six-day-old child, who died after an emergency room physician said she was suffering from nothing but a common cold, sued the physician and the hospital she practiced at. An autopsy showed that the baby had subarachnoid brain damage, which can indicate shaken baby syndrome. During deposition questioning, attorney Judith Wahrenberger, who was representing the doctor, asked the deceased child's father if he thought his wife's rough handling of the baby might have played a part in his daughter's death. The parents' attorney, Bruce Nagel, objected to this line of questioning, and an argument broke out.

The parents then brought suit against Wahrenberger, on a “theory of outrage” and emotional-distress, calling her questions “outrageous and inhumane” and “reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency.”

The trial court dismissed the case, assessed damages of $2,500 for bringing a frivolous lawsuit, and ordered Nagel and his clients to pay Wahrenberger's fees and costs of $11,630. On appeal, a New Jersey Appellate Division panel affirmed the award of fees and costs, noting that “[c]ounsel must be free to explore and probe the claims that have been asserted against his or her client. To expose the attorney to the risk of litigation on the basis of such questioning would subvert the underlying policy of the litigation privilege.” The judges said Nagel should be the one responsible for paying the counsel fees and costs, not his clients, because it appeared the lawsuit against Wahrenberger was entirely his idea. They did not affirm the frivolous lawsuit sanctions, however, because the lower court had relied for its decision, in part, on Nagel's actions in previous proceedings, when it should have looked only at the present case.

No Appeal from Merit Tribunal's Decision

The Appeals Court of Massachusetts, Essex, denied a dentist's attempt to obtain judicial review of a medical malpractice tribunal's report that found the plaintiff's claim had merit, as Massachusetts's law does not permit interlocutory appeal of such proceedings absent judicial permission. Ruggiero v. Giamarco , 73 Mass.App.Ct. 743 (Mass.App.Ct., 2/26/09).

Plaintiff Ann Marie Ruggiero filed a small claims action in the Peabody Massachusetts District Court alleging negligence on the part of Matteo L. Giamarco, D.M.D. Dr. Giamarco moved to refer the case to the Essex County Superior Court for a medical malpractice tribunal to review its the merits, pursuant to General Law (G.L.) c. 231 ' 60B. The tribunal concluded that the complaint had merit. Dr. Giamarco then filed a petition with a single justice of the appeals court seeking interlocutory review of the tribunal's decision, as permitted by G.L. c. 231 ' 118 (first par.). The single justice denied the dentist's petition and declined to grant leave to take an interlocutory appeal. Dr. Giamarco next sought to appeal directly from the tribunal order entered in the Superior Court.

The appellate court noted that the purpose of the statute establishing the medical tribunal was to screen complaints so as to discourage frivolous claims. The statute makes no provision for interlocutory appellate appraisal of the tribunal's decision, although it does allow a health care provider aggrieved by a tribunal decision to obtain interlocutory appellate review of that decision in the discretion of a single justice. G.L. c. 231 ' 118. However, here, having failed to obtain leave from the single justice, Dr. Giamarco contended that he was nonetheless entitled to appellate review as of right under the doctrine of present execution. Under that doctrine, immediate appeal of an interlocutory order is permitted if the order appealed from is “collateral” to the merits of the controversy and interferes with rights in a way that cannot be remedied on appeal from the final judgment. See Fabre v. Walton , 436 Mass. 517 (2002). The appeals court found, however, that the tribunal's decision that Ruggiero's complaint and offer of proof raised a legitimate question of liability appropriate for judicial inquiry was not “collateral” to the merits of her action. It was, in fact, at the heart of the merits of that action. Therefore, the court dismissed the appeal.

Attorney Who Sued Opponent for 'Outrageous' Deposition Question Must Pay

A New Jersey appellate court upheld the award of attorney fees to an attorney who was sued for allegedly going too far in her deposition questioning of a medical malpractice plaintiff. Rabinowitz v. Wahrenberger, — A.2d —-, 2009 WL 722720 (N.J.Super.A.D., 3/20/09) (NO. A-1626-07T1).

The parents of a six-day-old child, who died after an emergency room physician said she was suffering from nothing but a common cold, sued the physician and the hospital she practiced at. An autopsy showed that the baby had subarachnoid brain damage, which can indicate shaken baby syndrome. During deposition questioning, attorney Judith Wahrenberger, who was representing the doctor, asked the deceased child's father if he thought his wife's rough handling of the baby might have played a part in his daughter's death. The parents' attorney, Bruce Nagel, objected to this line of questioning, and an argument broke out.

The parents then brought suit against Wahrenberger, on a “theory of outrage” and emotional-distress, calling her questions “outrageous and inhumane” and “reprehensible, despicable, nasty, venomous, malevolent and horrid as to violate the most basic foundation of humanity and decency.”

The trial court dismissed the case, assessed damages of $2,500 for bringing a frivolous lawsuit, and ordered Nagel and his clients to pay Wahrenberger's fees and costs of $11,630. On appeal, a New Jersey Appellate Division panel affirmed the award of fees and costs, noting that “[c]ounsel must be free to explore and probe the claims that have been asserted against his or her client. To expose the attorney to the risk of litigation on the basis of such questioning would subvert the underlying policy of the litigation privilege.” The judges said Nagel should be the one responsible for paying the counsel fees and costs, not his clients, because it appeared the lawsuit against Wahrenberger was entirely his idea. They did not affirm the frivolous lawsuit sanctions, however, because the lower court had relied for its decision, in part, on Nagel's actions in previous proceedings, when it should have looked only at the present case.