Malpractice Bond Reduction and Advancement of Costs by Plaintiff’s Counsel

A daughter and her mother brought a medical malpractice action against a number of defendants who allegedly participated in the daughter's prenatal care. The mother and daughter alleged that the defendants' failure to recognize, report, or respond to a significant abnormality on an ultrasound examination performed on the mother resulted in her daughter's severe and permanent personal injuries.


Massachusetts law requires medical malpractice claims to be presented before 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. If a medical malpractice tribunal determines that there is insufficient evidence to raise a legitimate question of the defendant's liability, the plaintiff may pursue the claim through the usual judicial process only upon filing a $6,000 bond payable to the defendant for costs assessed if the plaintiff loses at trial. If the plaintiff is found to be indigent, the judge who participated in the tribunal may reduce the amount of the bond.


A medical malpractice tribunal was convened to evaluate this mother and child’s offer of proof as to the defendants’ liability. The tribunal determined that the mother and child failed to raise a legitimate question of liability appropriate for judicial inquiry as to the defendants. The mother and child then moved for a reduction of the bond they were required to file in order to continue pursuing their claim from $6,000 to $100. The judge, who had participated in the tribunal, found that the mother and child were indigent but concluded that their indigency did not warrant the reduction of the statutorily set bond amount. The judge assumed that the indigent mother and child were not funding the expenses of this litigation and the mother and daughter's counsel had advanced the costs and expenses of trial. The mother and daughter appealed.


The Supreme Court of Massachusetts vacated the judge’s denial of the plaintiffs' motion for a reduction of the bond and remanded the matter for reconsideration consistent with its opinion. The court concluded that the judge abused his discretion when he based his denial of a reduction in the amount of the bond based solely on his belief that the plaintiffs' attorneys were paying the plaintiffs' court costs and expenses of litigation. The court held that a judge may not refuse to reduce the amount of a medical malpractice plaintiff’s 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. Instead a judge should evaluate the reasonableness of the plaintiff's continued pursuit of the action by determining whether the indigent plaintiff made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard and whether a litigant who is able to pay and was paying the expenses herself, would consider the bond sufficiently important that she would choose to obtain it.


The court reasoned that where a reasonable litigant with means would expend her own funds to pay the bond, a judge should reduce the amount of the bond to give an indigent plaintiff the same opportunity to proceed with the action, because otherwise the judge may unreasonably burden a potentially meritorious suit. The court noted that the judge implicitly concluded both that the plaintiffs had made a good faith effort to present a sufficient offer of proof and that the plaintiffs' claim had enough merit that a reasonable plaintiff who could do so would expend his or her own funds in its pursuit, because the judge stated that he would reduce the bond amount if he learned that there was no agreement with the plaintiffs' counsel to advance or pay their court costs and expenses of litigation.


Although the judge found that the plaintiffs were indigent, the judge essentially found that the plaintiffs should not be regarded as indigent where their counsel agreed to advance or pay their court costs and expenses of litigation, because the purpose of the bond reduction would not be served if he reduced the bond for an indigent plaintiff whose attorneys would actually be the persons risking the price of the bond should the case move forward. However, a party's representation by an attorney, including an agreement by that attorney to advance or pay court costs or expenses of litigation, is not relevant to whether a party is indigent or to whether an indigent party is entitled to waiver or payment by the court of extra fees and costs.


See: Faircloth v. DiLillo, 466 Mass. 120, 2013 WL 3957794 (Mass., August 5, 2013) (not designated for publication).


Also see: Cruz v. Siddiqi, 466 Mass. 1004, 2013 WL 3957799 (Mass., August 5, 2013) (not designated for publication) (the Massachusetts Supreme Judicial Court held that the trial court erred in denying the plaintiffs' emergency motion to reduce the amount of the bond solely because he believed that the plaintiffs' attorney was advancing or paying the court costs and expenses of litigation).