
    Gregory L. Brown v. Steven Auster, M.D. and McLean Hospital
    Superior Court, Middlesex, SS
    No. CA 944740
    Memorandum Dated April 27, 1995
   Houston, J.

The plaintiff in this case moves to reduce the $6000 bond requirement pursuant to G.L.c. 231, §60B. Upon a determination that the plaintiff is indigent, the power to reduce the required bond is discretionary with the presiding judge. Little v. Rosenthal, 376 Mass. 573, 579 (1978).

On February 8, 1995, a Medical Malpractice Tribunal convened under G.L.c. 231, §60B. The Tribunal considered plaintiffs Offer of Proof against the defendants and decided there was insufficient evidence to raise a question of liability. In order to satisfy the statutory burden of proof, the plaintiff must offer evidence tending to establish that there was a doctor-patient relationship, that the defendant’s conduct did not conform to good medical practice and that damage resulted from the defendant’s conduct. Kapp v. Ballentine, 380 Mass. 186, 193 (1980).

Plaintiffs Offer of Proof alleges that Steven Auster, M.D., misdiagnosed plaintiffs minor son for alleged sexual abuse. In addition, the Offer of Proof alleges that Dr. Auster was negligent and that he allowed prohibited factors to influence his diagnosis of plaintiffs son. As a result of defendant’s conduct, plaintiff claims he suffered severe emotional distress, damage to his reputation, and wrongful criminal prosecution.

Despite the compelling nature of the plaintiffs allegations against the defendants, his Offer of Proof fails to demonstrate a doctor-patient relationship between himself and the defendants. In addition, the injuries sustained by the plaintiff in this action are more consistent with the injuries suffered by a plaintiff in an action for a common law intentional tort, rather than an action for medical malpractice. See Nolan & Sartorio, Tort Law §77-82 (1989 and 1995 Pocket Part).

If an indigent plaintiffs offer of proof, construed in a light most favorable to the plaintiff, cannot support a verdict for the plaintiff, the court may refuse to reduce the amount of bond. Denton v. Beth Israel Hosp., 392 Mass. 277, 281 (1984); Perez v. Bay State Ambulance and Hosp. Rental Service, 413 Mass. 670, 678 (1992). In the present case, plaintiffs Offer of Proof cannot support a cause of action for medical malpractice, much less a verdict for the plaintiff.

ORDER

For the foregoing reasons, the motion to reduce the amount of bond is DENIED.  