Facts: On December 4, 2003, Michael Lyons,
suffered a stroke. He was transferred to Hasbro Children’s Hospital in
Province, Rhode Island and came under the care of Dr. Duncan. Surgery was
performed by Dr. Duncan on the right side of Michael’s brain. Following the
surgery, Michael had two follow-up visits with Dr. Duncan in Province. After
each visit, Dr. Duncan mailed a letter to Michael’s pediatrician in
Massachusetts regarding Michael’s diagnoses, surgery, and treatment that he had
received and his condition. In June 2004, Michael suffered a second stroke. He
was taken to Children’s Hospital in Boston and surgery was performed on both
sides of his brain.
Procedural History: In 2007, the plaintiffs
brought a malpractice action in Massachusetts against Michael’s pediatrician
and Needham Pediatrics, P.C. In 2010, they amended the 2007 complaint to add
Dr. Duncan as a defendant, alleging negligence, lack of informed consent, and
claims on behalf of both parents. Later, they filed a second motion to amend
their 2007 complaint to add a claim of negligent misrepresentation against Dr.
Duncan based on two letters that he mailed to Michael’s pediatrician in
Massachusetts. This motion was denied on the grounds that it was futile. The
defendant’s motion for summary judgment was granted because of the court’s lack
of personal jurisdiction over the defendant. In 2010, before the defendant’s
summary judgment was granted, instead of appealing the denial of their second
motion to amend, the plaintiffs simply filed another malpractice action against
Dr. Duncan to add a claim of negligent misrepresentation. A different Superior
Court judge granted the defendant’s motion to dismiss.
Issue #1: (2007 case) Whether Massachusetts courts
have personal jurisdiction over Dr. Duncan pursuant to the Massachusetts
long-arm statute?
No. The court found no basis for personal jurisdiction in
relation to the plaintiffs’ negligent misrepresentation claim based on two
letters under the Massachusetts long-arm statute, G.L.c. 223A, §
3. The court reasoned that the negligent misrepresentation claim never became
part of the 2007 case and the plaintiff never even raised any arguments either
in Superior Court or on appeal to explain why Massachusetts courts should have
personal jurisdiction over the defendant. Furthermore, even if that claim had
been added to the 2007 case, the plaintiffs still could not establish personal
jurisdiction under the long-arm statute because there is no evidence that Mr.
Duncan actually practiced medicine in Massachusetts.
Issue #2: (2010 case) Whether the 2010 case was
properly dismissed pursuant to rule 12(b)(9)?
Yes. The case was properly dismissed. “Rule 12(b)(9)[(10)]
provides for the dismissal of a second action in which the parties and the
issues are the same as those in a prior action still pending in a court of this
Commonwealth. The rule prohibits the long-barred practice of claim-splitting.” The
court found that the 2010 case was properly dismissed pursuant to rule 12(b)(9)
because the parties and the claims were same in both cases and the 2007 case
was still pending. (YK)
