Wednesday, January 7, 2009
Appeals Court: Six strikes, you're out
Boston Business Journal - by Lisa van der Pool
One local man won’t have his day in court because his lawyer failed to serve the lawsuit, despite a number of opportunities.
The Massachusetts Appeals Court Wednesday reversed a decision that had allowed a medical malpractice case to proceed against Beth Israel Deaconess Medical Center Inc., after the plaintiff’s lawyer had missed six different deadlines to serve the lawsuit.
The serial failure to serve the suit led a court to dismiss the case. It was reinstated 13 months later.
The matter began on July 16, 2004, when Michael Dana Kennedy launched a medical malpractice action against his doctors at Beth Israel Deaconess Medical Center Inc., who had allegedly failed to diagnose his cystic fibrosis, according to Massachusetts Appeals Court documents.
Kennedy hired H. Paul Carroll of Newburyport to sue the hospital, but during the following months Kennedy missed the six deadlines to serve the complaint.
In seeking extensions, Carroll had listed a variety of reasons for his tardiness, including that was he a “victim of assault” and “recent inclement weather,” according to court documents. The dismissal came after the lawyer missed his last deadline on May 23, 2005.
But Carroll was able to get that decision reversed the following June of 2006 after he filed an ex parte motion to vacate the judgement of dismissal.
Now, that decision has been reversed again and the case is dismissed. Again.
In its decision, the court wrote, “... we are not convinced that the judge applied the correct legal standard, requiring an assessment and finding of good cause for plaintiff’s counsel’s serial, untimely, and uneffected service of the underlying complaint, given the history of reported reasons for the failure to effectuate service unaddressed by the judge who granted relief.”
Carroll declined comment.
Wednesday, January 7, 2009
A Closer Call Than It Should Be
Adam at Universal Hub already has a short post up about the Appeals Court's decision in Kennedy v. Beth Israel Deaconess Med. Ctr., Inc., No. 06-P-1918. It's worth digging into the facts a bit more, since this is one of those rare Appeals Court cases where a justice takes the time and effort to draft a dissent.
The Court flipped a trial judge's decision to reopen a case after it had been dismissed. Why was it dismissed? Because the plaintiff's lawyer, H. Paul Carroll, couldn't manage to properly deliver a copy of the complaint to the defendant after receiving six emergency time extensions to do so.
That's right: six!
Let's run down counsel's reasons for these six extension.
The First One: he needed to talk to an expert and he put down the wrong deadline on his calendar.
The Second One: he still needed to talk to that expert and he'd been assaulted (the lawyer, not the expert).
The Third One: he needed to talk to the expert some more and was in discussions with the hospital to get the complaint delivered informally.
The Fourth One: the sheriff who was supposed to deliver the complaint couldn't guarantee delivery by a certain date.
The Fifth One: recent inclement weather.
The Sixth One: he needed to draft a new complaint that more fully set out the complicated medical issues.
By sheer coincidence, there's a lawyer in Newburyport who goes by the name H. Paul Carroll (same guy? maybe?). His website touts his ability to provide timely solutions to his clients, which is a little bit bizarre. There also seems to be a lawyer named H. Paul Carroll (same guy? maybe?) who was suspended by the New Hampshire Bar for failing to pay a special fee after, you guessed it, he didn't file some administrative paperwork on time.
From a strict legal perspective, this is actually a pretty tough case. That's why there's a dissent. This might just be one of those cases, though, were a mechanical interpretation of the law produces a result that wouldn't inspire a whole lot of public confidence in the profession.
Posted by Terry Klein at 9:40 PM
- Posted on: 03/20/09
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