Appeals court hears argument over posting bond under medical‑malpractice statute (G.L. c.231, §60B); parties dispute excusable‑neglect standard

The appeals court heard argument March 10 in 2024P963, a dispute over whether a plaintiff’s failure to post a bond within the statutory 30‑day period following a medical‑malpractice tribunal decision could be excused as “excusable neglect” and whether the trial court abused its discretion in permitting a later filing.

John Waldron, counsel for the defendants, argued that Chapter 231, Section 60B (the medical‑malpractice tribunal statute) is plain and strict: when a bond is not posted within the statutory 30 days the statute requires dismissal. He urged the court to limit application of excusable‑neglect doctrines to narrow factual circumstances, noting the Supreme Judicial Court’s Goldstein decision had allowed a single extra day where counsel’s reasonable misunderstanding of Rule 6 provided excusable neglect.

Plaintiff’s counsel, Catherine Wickenheiser, argued the trial court correctly applied established excusable‑neglect principles and that the four‑pronged test (prejudice, length of delay, reason for delay and good faith) favored allowing a belated bond here. She told the panel there were health and family emergencies among counsel, an approved interlocutory stay was in effect for part of the period, and the plaintiff attempted to communicate with defense counsel about the situation before the dismissal motion was filed.

Argument examined the timeline in the record: tribunal decision mid‑November, an interlocutory stay motion on November 30/December 4, a calendaring or recording error that led to an unnoticed deadline, the trial court’s finding of excusable neglect, and the filing of a motion to dismiss served January 11. Counsel disputed how much unaccounted time remained and whether the movant demonstrated tactical delay or prejudice; defense counsel described continuing litigation burdens and cost as prejudice to health‑care defendants. Both sides cited SJC and Superior Court precedents including Goldstein, McMahon and McMahon v. Glixman in support of differing standards.

The panel pressed counsel on how strict statutory time requirements interact with equitable doctrines and on the practical prejudice to defendants where malpractice matters typically run for years. Counsel acknowledged the abuse‑of‑discretion standard governs appellate review of an excusable‑neglect determination. The court took argument and submitted the case for decision.