The Supreme Judicial Court ruled earlier this week that the Superior Court judge applied the wrong legal standard in deciding whether to reduce the bond required to be posted by a plaintiff who is not successful at the medical malpractice tribunal. The decision, Faircloth v. DiLillio, held that the judge must determine whether the plaintiff herself can afford the $6,000 bond, even if the plaintiff’s attorney has agreed to advance litigation costs.
The history of the case, handled by Crowe & Mulvey lawyers Liz Mulvey and Florence Carey, was chronicled in an earlier post. The plaintiff, a young girl with severe brain damage, had lost at the medical malpractice tribunal, despite presenting the opinion of a board-certified obstetrician that her injuries were due to the defendant’s negligence. According to the statute, the required bond is to be reduced if the plaintiff is indigent, to insure access to the courts for all, but the Superior Court held that the plaintiff’s lawyers should be required to post the bond because they were paying other costs.
The Supreme Judicial Court held that a lawyer’s agreement to advance litigation costs could not be considered by the Superior Court in deciding whether to reduce the bond. Instead, the judge must consider only whether the plaintiff has made a “good faith effort” to satisfy the tribunal standard, and whether a reasonable person in the plaintiff’s position who was paying his own expenses would spend his own money to post the bond.
Because dismissal ensues if the bond is not posted, the SJC recognized that requiring the attorney to post the bond could put him in an impossible position vis-a-vis his client, who might want the bond posted when the attorney did not wish to do so. Further, the Court noted that attorneys might be less willing to represent people of limited means if they knew they might be exposed to liability for the full amount of the bond. The SJC’s decision insures that medical malpractice victims will not be denied access to a jury trial because of their inability to pay the cost of a bond, and that decisions about the amount of the bond will not be made based on the lawyer’s finances.
Read the full Faircloth decision here.