Service of Medical Malpractice Complaint Too Late after Unexplained Delay of Over One Year Says Massachusetts Appeals Court


docsThe Massachusetts Appeals Court has reversed a Superior Court ruling reinstating a medical professional malpractice complaint, which had been dismissed for lack of service, but reinstated over one year later on a Motion to Vacate Judgment under Mass. Rules of Civil Procedure Rule 60(b).

The original complaint had been filed within the statute of limitations, but not served within the following ninety (90) days as required under the Mass. Rules of Civil Procedure, Rule 4(j). Counsel for the Plaintiff had sought and obtained not less than five (5) extensions from the Court, but still was unable to effect service.

The medical malpractice action was filed against the Beth Israel Deaconess Medical Center, Inc. and two of its physicians, alleging their failure to diagnose cystic fibrosis during care and treatment of him up to and including December 3, 2001.

Plaintiff’s attorney filed an initial complaint and then repeatedly sought the Court’s permission to delay filing “a more detailed” complaint. Other excuses followed resulting in a total of six extensions. However, the complaint never got served and the Complaint was dismissed.

Thirteen months later, Plaintiff’s counsel filed an ex parte motion to vacate the judgment, which was allowed. Service was then effected, and Defendants filed motions to reconsider the allowance of the Rule 60(b) motion, which vacated the judgment. The motions were denied, and the defendants appealed.

The issue for the Appeal Court was whether the judge made an error of law in considering the plaintiff’s counsel’s motion to vacate under rule 60(b)(6) instead of rule 60(b)(1) or (b)(3) and whether, under 60(b)(6), the plaintiff’s counsel moved for relief from judgment within a reasonable time.


The Appeals Court reversed the lower court ruling. It determined that the judge below had not applied the correct legal standard, which required an assessment and finding of good cause for the “serial, untimely, and uneffected service of the underlying complaint” and that the judge had not addressed those issues, and finally that the Plaintiff had not moved for relief within a reasonable time after judgment entered dismissing the case. In the end the Court reversed the decision to reinstate the case finding that the lower court judge had abused his discretion under Rule 60(b)(6).

Comments: It is evident that the Courts will permit much leeway when it comes to delays in the effecting of service of process, whether or not there appear to be legitimate grounds for granting extensions of the 90 day limit under Rule 4(J). However, when a dismissal has entered for the failure to serve, and a period over one year is permitted to extend before efforts are made to reinstate the case, the Appeals Court has made it clear that the lower court must articulate specific and justifiable grounds before the granting of a Rule 60(b) motion will withstand appellate review.


 No. 06-P-1918, January 7, 2009



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