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Massachusetts Court of Appeals Reinstates Prisoner’s Dental Negligence Suit
Andrew W. Kilburn, a Massachusetts state prisoner, filed suit in state superior court alleging negligence and violation of the Eighth Amendment by Department of Correction (DOC) officials and medical personnel employed by Correctional Medical Services (CMS) and University of Massachusetts Correctional Health (UMCH). Kilburn claimed that the defendants had failed to properly treat a small cavity for over three years until the tooth had to be pulled. He also challenged a DOC policy that required him to use “the world’s smallest toothbrush,” which would not reach his back teeth. A series of three judges issued orders which ultimately resulted in a summary judgment ruling in favor of the defendants. Kilburn appealed.
The Court of Appeals held that the toothbrush issue was moot because the DOC had since changed its policy to allow the purchase of one larger toothbrush every 90 days. The appellate court also held that a medical malpractice tribunal’s finding of insufficient proof of liability against CMS dentist Anthony Orlatunji required that he be dismissed as a defendant. However, the court’s findings did not extend to former CMS dentist Steven Black, who had failed to answer Kilburn’s complaint, or to CMS as a company.
The DOC claimed immunity from liability because it had delegated its dental responsibilities to CMS. However, this is-sue was not sufficiently developed to justify summary judgment, since neither the amount of control the DOC had over CMS and UMCH nor the degree of independent judgment allowed the contract dentists had been shown. Noting that the DOC had argued in other cases that a prisoner could not sue as a third-party beneficiary of the contract between the DOC and CMS, the Court of Appeals observed “that the DOC should not be able to have it both ways: immunity from liability based on an inmate’s lack of standing to sue as an intended beneficiary of a contract, and also, at the same time, immunity from liability by delegating its dental responsibilities to an independent medical provider.”
Therefore, the Court of Appeals vacated the portion of the judgment that dismissed Kilburn’s Eighth Amendment claims against Black and any other defendant who could be held liable as Black’s supervisor. The appellate court also vacated the judgment to the extent that it dismissed negligence claims against the DOC defendants, Black and the UMCH and CMS defendants – except for Orlatunji, whose dismissal was affirmed. The case was remanded to the Superior Court for further proceedings. See: Kilburn v. Department of Correction, 72 Mass.App.Ct. 1105 (2008).
The Court of Appeals held that the toothbrush issue was moot because the DOC had since changed its policy to allow the purchase of one larger toothbrush every 90 days. The appellate court also held that a medical malpractice tribunal’s finding of insufficient proof of liability against CMS dentist Anthony Orlatunji required that he be dismissed as a defendant. However, the court’s findings did not extend to former CMS dentist Steven Black, who had failed to answer Kilburn’s complaint, or to CMS as a company.
The DOC claimed immunity from liability because it had delegated its dental responsibilities to CMS. However, this is-sue was not sufficiently developed to justify summary judgment, since neither the amount of control the DOC had over CMS and UMCH nor the degree of independent judgment allowed the contract dentists had been shown. Noting that the DOC had argued in other cases that a prisoner could not sue as a third-party beneficiary of the contract between the DOC and CMS, the Court of Appeals observed “that the DOC should not be able to have it both ways: immunity from liability based on an inmate’s lack of standing to sue as an intended beneficiary of a contract, and also, at the same time, immunity from liability by delegating its dental responsibilities to an independent medical provider.”
Therefore, the Court of Appeals vacated the portion of the judgment that dismissed Kilburn’s Eighth Amendment claims against Black and any other defendant who could be held liable as Black’s supervisor. The appellate court also vacated the judgment to the extent that it dismissed negligence claims against the DOC defendants, Black and the UMCH and CMS defendants – except for Orlatunji, whose dismissal was affirmed. The case was remanded to the Superior Court for further proceedings. See: Kilburn v. Department of Correction, 72 Mass.App.Ct. 1105 (2008).
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Related legal case
Kilburn v. Department of Correction
| Year | 2008 |
|---|---|
| Cite | 72 Mass.App.Ct. 1105 (2008) |
72 Mass. App. Ct. 1105; 889 N.E.2d 450;
2008 Mass. App. LEXIS 693, *
ANDREW W. KILBURN vs. DEPARTMENT OF CORRECTION & others
No. 07-P-987
APPEALS COURT OF MASSACHUSETTS
72 Mass. App. Ct. 1105; 889 N.E.2d 450; 2008 Mass. App. LEXIS 693
June 30, 2008, Decided
OPINION
[*1]
The portion of the judgment dismissing Kilburn's Eighth Amendment claims against Black and any other defendants thereby implicated pursuant to a theory of respondeat superior, is vacated. The portion of the judgment dismissing the negligence claims against the DOC defendants is vacated. The portion of the judgment dismissing the negligence claims against Black and the CMS/UMCH defendants, is vacated with the exception of Orlatunji, whose dismissal is affirmed. In all other aspects the judgments are affirmed. The case is remanded to the Superior Court for proceedings consistent with the memorandum and order of the Appeals Court.
2008 Mass. App. Unpub. LEXIS 749, *
ANDREW W. KILBURN vs. DEPARTMENT OF CORRECTION & others. 1
1 Kathleen Dennehy, Commissioner of the Department of Correction; David Nolan, former superintendent of Massachusetts Correctional Institution at Cedar Junction; Susan Martin, former director of health services division; Correctional Medical Services; UMass Correctional Health; Arthur Brewer, medical director for Correctional Medical Services; Anthony Orlatunji; Stanley Galas; and Steven Black. The Department of Correction defendants are sued in their individual and official capacities.
07-P-987
APPEALS COURT OF MASSACHUSETTS
2008 Mass. App. Unpub. LEXIS 749
June 30, 2008, Entered
NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL'S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.
OPINION
This appeal involves the adequacy of dental care provided to the plaintiff, Andrew W. Kilburn, while he was an inmate in the care and custody of the Massachusetts Department of Correction (DOC). He is currently incarcerated at Massachusetts Correctional Institution (MCI) at Cedar Junction. Kilburn brought an action against (1) a group of 'DOC defendants,' which includes the DOC; Kathleen Dennehy, Commissioner of the DOC; David Nolan, former superintendent of MCI-Cedar Junction; and Susan Martin, former director of the DOC health services division; (2) a group of 'CMS/UMCH defendants,' which includes Correctional Medical Services (CMS); UMass Correctional Health (UMCH); Dr. Arthur Brewer, medical director for CMS; Dr. Anthony Orlatunji; and nurse practitioner Stanley Galas; and (3) Dr. Steven Black, a dentist formerly employed by UMCH who worked at the prison during the relevant time period. Referencing 42 U.S. C. § 1983 and G. L. c. 258, § 4 (the Massachusetts Tort Claims Act), Kilburn alleges negligent dental treatment and violation of the Eighth Amendment of the United States Constitution, and he seeks injunctive, declaratory, and monetary relief.
Kilburn [*2] appeals the following Superior Court actions: (1) the first judge's order allowing summary judgment for the DOC defendants -- separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), subsequently was entered; (2) the second judge's order allowing summary judgment for the CMS/UMCH defendants as to the Eighth Amendment claims; and (3) the third judge's order dismissing the remainder of the complaint based on Kilburn's failure to post a bond within thirty days of the medical malpractice tribunal's report -- judgment of dismissal subsequently was entered. 2
FOOTNOTES
2 This judgment states: 'This action came on before the Court, Ernest B. Murphy, Associate Justice, presiding, the plaintiff having failed to file a Bond under G.L. c. 231, Section 60B, and upon consideration thereof, it is ORDERED and ADJUDGED: That the Complaint of the Plaintiff, Andrew W. Kilburn as to [all defendants] is hereby dismissed without prejudice.' Because the judgment references the medical malpractice tribunal, we assume that it dismissed only the remaining negligence claims.
As discussed more thoroughly below, we vacate the portion of the judgment that dismissed Kilburn's Eighth Amendment claim [*3] against Black (and any other defendants thereby implicated under a theory of respondeat superior). We also vacate the portion of the judgment that dismissed the negligence claims against the DOC defendants. With the exception of Orlatunji, whose dismissal we affirm, we also vacate the portion of the judgment dismissing the negligence claims against Black and the CMS/UMCH defendants.
Eighth Amendment claims. Kilburn alleges that all of the defendants failed to provide adequate medical treatment in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Specifically, he claimed in his complaint that he suffered 'actual harm' when, during a three-year period, doctors failed to properly treat a 'small' cavity in his tooth, causing an ill-filled cavity to worsen, eventually requiring extraction of the tooth. He further contended that the defendants prevented him from obtaining, and paying for himself, a root canal at an outside facility. 3
FOOTNOTES
3 Kilburn raises an additional argument that does not warrant an extended discussion. He takes issue in his brief with the DOC defendants' administrative policy that requires him to use 'THE WORLDS SMALLEST TOOTHBRUSH,' which [*4] does not reach his rear teeth. It appears that this issue is moot based on concessions during oral argument that inmates now can buy a bigger toothbrush once every ninety days.
'To succeed on an Eighth Amendment claim, a plaintiff-inmate must demonstrate that (1) a prison's conditions of confinement present 'a substantial risk of serious harm'; and (2) prison officials acted with 'deliberate indifference' to inmate health or safety.' Torres v. Commissioner of Correction, 427 Mass. 611, 613-614, 695 N.E.2d 200 (1998). Pertaining to the DOC and the CMS/UMCH defendants, two Superior Court judges allowed motions for summary judgment on the ground that, assuming Kilburn's dental problems constituted a serious medical need, Kilburn failed to offer evidence that these defendants were deliberately indifferent to those serious medical needs.
Summary judgment is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). 'Disputed facts are material only if they have a bearing on the outcome of the case.' Jupin v. Kask, 447 Mass. 141, 145-146, 849 N.E.2d 829 (2006). The moving party bears the burden [*5] of proof. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Good v. Commissioner of Correction, 417 Mass. 329, 332, 629 N.E.2d 1321 (1994). The opponent then bears the burden of introducing enough countervailing data to demonstrate the existence of a genuine material factual issue. Mass.R.Civ.P. 56(e), 395 Mass. 824 (1974); Madsen v. Erwin, 395 Mass. 715, 719, 481 N.E.2d 1160 (1985).
Applying these principles here, Kilburn did not meet his burden of showing the existence of any disputed material facts. Despite the list he provided to this court, which was entitled 'Plaintiff Disputes the Defendants Statement of Material Facts,' none of these facts would have made any difference in the outcome of his case. See Jupin v. Kask, supra . See also Norwood v. Adams-Russell Co., 401 Mass. 677, 683, 519 N.E.2d 253 (1988) ('The [moving party] need not prove that no factual disputes exist, only that there is no genuine dispute of material fact'). This situation differs from the one we faced in Sullivan v. Commissioner of Correction, 69 Mass. App. Ct. 1115, 872 N.E.2d 229 (2007). There, relying on DOC policies and detailed dental charts, the inmate claimed he had been denied teeth cleaning and scaling services for a period of seven and one-half years and [*6] that he twice had been recommended for a root canal. The inmate pointed to specific, material errors in the motion judge's findings of fact and rulings of law, as well as to disputed material facts concerning what constitutes 'community standards' of dental care under DOC policies, whether he was entitled to dental cleaning and scaling services, and the exact period of time during which he had not received a cleaning.
Here, to the contrary, Kilburn merely provided a list of errors in the defendants' summary judgment motion relating to random facts, having little bearing on whether the defendants were deliberately indifferent to his allegedly serious dental needs. He also failed to provide us with the governing regulations concerning inmates' ability to retain an outside dentist. See Rasheed v. Commissioner of Correction, 446 Mass. 463, 475, 845 N.E.2d 296 (2006).
Despite Kilburn's weak summary judgment submission concerning his Eighth Amendment claims, the docket does not reflect entry of final judgment as to the Eighth Amendment claim against Black. Kilburn alleges in his complaint that if Black 'had properly performed [his] work . . . [the extraction] would've never happened.' He also alleges that [*7] Black 'had knowledge of the plaintiff's condition BUT Failed to provide treatment while Kilburn was in [his] CARE & CUSTODY.' 4 Black did not answer the complaint or defend himself in any way in this lawsuit, and we therefore consider the Eighth Amendment claims against him to be outstanding. Also, a determination on remand must be made as to whether any other defendants are implicated under a theory of respondeat superior.
FOOTNOTES
4 During oral argument before this court, counsel for the CMS/UMCH defendants clarified that Black was not included as part of the CMS/UMCH defendants.
Negligence claims. Kilburn alleges negligence in that the dentists (Orlatunji and Black) performed medical malpractice and the other defendants were vicariously negligent through their employment or oversight of the dentists. As to Orlatunji, a medical malpractice tribunal determined, under a directed verdict standard, that Kilburn's offer of proof of negligence was insufficient to raise a legitimate question of liability warranting further judicial inquiry. See G. L. c. 231, § 60B. Kilburn was ordered to post a bond in the amount of $ 6,000. Despite his claimed indigent status, Kilburn did not move for reduction of [*8] the bond, and he never complied with filing the bond. 5 On these grounds, the CMS/UMCH defendants successfully moved to dismiss the complaint. As the order requiring the bond indicated, 'If said bond is not posted within thirty (30) days of the Tribunal's finding, said action shall be dismissed upon filing of an appropriate motion.' Kilburn's request for reconsideration was denied.
FOOTNOTES
5 The record is unclear whether Kilburn was deemed indigent under G. L. c. 261, § 27B. Regardless, a judge is authorized only to reduce, but not to eliminate entirely, the required bond. G. L. c. 231, § 60B. Kilburn did not move for reduction of the bond and, because the offer of proof was insufficient as to Orlatunji, the judge was well within his discretion to order a bond in the statutory amount of $ 6,000 if Kilburn wished to pursue the claim through the usual judicial process. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc. 413 Mass. 670, 678, 602 N.E.2d 570 (1992).
Although Kilburn contends that he submitted to the medical malpractice tribunal over six hundred pages as his offer of proof, the record before us contains only his own conclusory allegations about medical malpractice. There is nothing in Kilburn's [*9] offer of proof, however, demonstrating that Orlatunji's performance 'did not conform to good dental practice' and that damage resulted therefrom. See Anderson v. Attar, 65 Mass. App. Ct. 910, 911, 841 N.E.2d 1286 (2006). Recognizing that the purpose of the tribunal screening mechanism is 'to discourage frivolous claims against health care providers,' Lambley v. Kameny, 43 Mass. App. Ct. 277, 282, 682 N.E.2d 907 (1997), and because the record lacks any sufficient evidence to the contrary, there was no error in the tribunal's determination that the offer of proof failed to raise a legitimate question of Orlatunji's liability.
As to the DOC defendants, the first judge dismissed Kilburn's negligence claims on the ground that the DOC and its employees are not liable for the alleged inadequate care given by an independent contractor, namely UMCH, with delegated authority to provide dental services to Kilburn, citing Thornton v. Commonwealth, 28 Mass. App. Ct. 511, 514, 552 N.E.2d 601 (1990) (Commonwealth not liable under Massachusetts Tort Claims Act for death of child during camping trip run by independent contractor who had been delegated the care of the child by Department of Youth Services). Whether the DOC has a nondelegable duty to [*10] its inmates, however, is not determined by reliance on Thornton because the DOC does not have the same statutory protection as does the Department of Youth Services. See G. L. c. 120, § 10(a), which pertains solely to the Department of Youth Services and Massachusetts training schools.
The issue of whether the DOC is immune from liability by delegating its dental responsibilities to an independent contractor appears to be an issue of first impression in Massachusetts, 6 and one that cannot be resolved on the record before us. Summary judgment was inappropriate here, where disputed material facts exist concerning whether the dentists are 'public employees' under the direction and control of the DOC, acting through its agents. See Kelley v. Rossi, 395 Mass. 659, 662, 481 N.E.2d 1340 (1985) (discussing that nature of doctor's function suggests that in most instances he will act as an independent contractor based on the requisite level of skill, training, and independent judgment); Smith v. Steinberg, 395 Mass. 666, 668-669, 481 N.E.2d 1344 (1985) (same); McNamara v. Honeyman, 406 Mass. 43, 47, 546 N.E.2d 139 (1989) (same). See also Alperin and Shubow, Summary of Basic Law § 20.354 (3d ed. 1996). It is worth noting that the dentists here [*11] do not have the same discretion to exercise their medical judgment as regular dentists. Policies and regulations concerning cleanings, root canals, extractions, and other dental procedures appear to be dictated by the DOC. While the first judge stated that it is 'undisputed that [UMCH] is an independent contractor hired by the DOC . . . [and] was solely responsible' for Kilburn's dental care, that conclusion requires an evaluation of the contract between the DOC and UMCH, as well as the relevant regulations, to determine (1) the amount of control that the DOC has over UMCH's activities; and, conversely, (2) the degree of independent medical judgment that the dentists are allowed to employ.
FOOTNOTES
6 This proposition troubles us in that the DOC, which is entrusted with the care and custody of inmates, then would bear no responsibility in providing inmates with dental services. More specifically, in delegating dental care to the 'sole province' of the contracted medical provider, as argued in the brief of the DOC defendants (and the 'professional judgment' of their dentists), the DOC also would have no inclination to oversee whether inmates receive the services for which the medical providers [*12] are being paid, as well as the types of services (and whether they measure up to community standards of dental care) that the inmates are receiving.
We mention that the issue of third-party beneficiary also is connected. In Sullivan vs. Correctional Medical Services, Inc., Appeals Ct. No. 07-P-964, 2008 Mass. App. Unpub. LEXIS 446 (June 27, 2008), which was argued the same day as the within case, the DOC argued that an inmate, as an incidental beneficiary, could not sue on a contract between the State and its contracted medical provider. But see Ogunde v. Prison Health Servs. Inc., 274 Va. 55, 63-64, 645 S.E.2d 520 (2007) (holding inmate is 'clearly and definitely' intended third-party beneficiary of contract between Virginia correction department and its medical services contractor, based on language and purpose of contract to provide health care services to inmates); Miller v. Corrections Corp. of America, 239 Fed. Appx. 396, 396-397 (9th Cir. [Alaska] 2007), citing Rathke v. Corrections Corp. of America, 153 P.3d 303, 310 (Alaska 2007) (holding that prisoners are intended third-party beneficiaries of contract between Alaska correction department and private company housing inmates). We point out that the DOC should not be able to [*13] have it both ways: immunity from liability based on an inmate's lack of standing to sue as an intended beneficiary of a contract, and also, at the same time, immunity from liability by delegating its dental responsibilities to an independent medical provider.
We agree with Kilburn that the third judge abused his discretion in entering a judgment dismissing the negligence claims against Black and the CMS/UMCH defendants, except Orlatunji. The record indicates that the medical malpractice tribunal convened and made a determination only concerning Orlatunji. Despite alleging claims of medical malpractice, a medical malpractice tribunal never convened and, therefore, never determined the sufficiency of the offer of proof against Black and the other CMS/UMCH defendants. 7 G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5 ('Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal . . .'). Those defendants thus improperly were dismissed.
FOOTNOTES
7 In fact, the record shows that, despite being served with a summons and a complaint, Black neither responded nor had an attorney file a notice of appearance in this lawsuit. Kilburn subsequently filed [*14] motions for default judgment, pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974); discovery, pursuant to Mass.R.Civ.P. 26, as amended, 423 Mass. 1401 (1996); and for final judgment supported by an affidavit, pursuant to Mass.R.Civ.P. 54, as amended, 382 Mass. 829 (1981), against Black. For an unknown reason, no judge ever ruled on these motions before the third judge ordered judgment dismissing the negligence claims against Black (and the CMS/UMCH defendants) once Kilburn failed to file a bond after the tribunal's decision concerning Orlatunji. Kilburn unsuccessfully move for reconsideration of this last order.
Accordingly, we vacate the portion of the judgment that dismissed Kilburn's Eighth Amendment claims against Black and any other defendants thereby implicated pursuant to a theory of respondeat superior, and remand for such determination. We also vacate the portion of the judgment that dismissed the negligence claims against the DOC defendants. Furthermore, we vacate the portion of the judgment dismissing the negligence claims against Black and the CMS/UMCH defendants, with the exception of Orlatunji, whose dismissal we affirm. In all other aspects the judgments are affirmed. [*15] We remand the case to the Superior Court for proceedings consistent with this decision.
So ordered.
2008 Mass. App. LEXIS 693, *
ANDREW W. KILBURN vs. DEPARTMENT OF CORRECTION & others
No. 07-P-987
APPEALS COURT OF MASSACHUSETTS
72 Mass. App. Ct. 1105; 889 N.E.2d 450; 2008 Mass. App. LEXIS 693
June 30, 2008, Decided
OPINION
[*1]
The portion of the judgment dismissing Kilburn's Eighth Amendment claims against Black and any other defendants thereby implicated pursuant to a theory of respondeat superior, is vacated. The portion of the judgment dismissing the negligence claims against the DOC defendants is vacated. The portion of the judgment dismissing the negligence claims against Black and the CMS/UMCH defendants, is vacated with the exception of Orlatunji, whose dismissal is affirmed. In all other aspects the judgments are affirmed. The case is remanded to the Superior Court for proceedings consistent with the memorandum and order of the Appeals Court.
2008 Mass. App. Unpub. LEXIS 749, *
ANDREW W. KILBURN vs. DEPARTMENT OF CORRECTION & others. 1
1 Kathleen Dennehy, Commissioner of the Department of Correction; David Nolan, former superintendent of Massachusetts Correctional Institution at Cedar Junction; Susan Martin, former director of health services division; Correctional Medical Services; UMass Correctional Health; Arthur Brewer, medical director for Correctional Medical Services; Anthony Orlatunji; Stanley Galas; and Steven Black. The Department of Correction defendants are sued in their individual and official capacities.
07-P-987
APPEALS COURT OF MASSACHUSETTS
2008 Mass. App. Unpub. LEXIS 749
June 30, 2008, Entered
NOTICE: DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28 ARE PRIMARILY ADDRESSED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL'S DECISIONAL RATIONALE. MOREOVER, RULE 1:28 DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28, ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT.
OPINION
This appeal involves the adequacy of dental care provided to the plaintiff, Andrew W. Kilburn, while he was an inmate in the care and custody of the Massachusetts Department of Correction (DOC). He is currently incarcerated at Massachusetts Correctional Institution (MCI) at Cedar Junction. Kilburn brought an action against (1) a group of 'DOC defendants,' which includes the DOC; Kathleen Dennehy, Commissioner of the DOC; David Nolan, former superintendent of MCI-Cedar Junction; and Susan Martin, former director of the DOC health services division; (2) a group of 'CMS/UMCH defendants,' which includes Correctional Medical Services (CMS); UMass Correctional Health (UMCH); Dr. Arthur Brewer, medical director for CMS; Dr. Anthony Orlatunji; and nurse practitioner Stanley Galas; and (3) Dr. Steven Black, a dentist formerly employed by UMCH who worked at the prison during the relevant time period. Referencing 42 U.S. C. § 1983 and G. L. c. 258, § 4 (the Massachusetts Tort Claims Act), Kilburn alleges negligent dental treatment and violation of the Eighth Amendment of the United States Constitution, and he seeks injunctive, declaratory, and monetary relief.
Kilburn [*2] appeals the following Superior Court actions: (1) the first judge's order allowing summary judgment for the DOC defendants -- separate and final judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), subsequently was entered; (2) the second judge's order allowing summary judgment for the CMS/UMCH defendants as to the Eighth Amendment claims; and (3) the third judge's order dismissing the remainder of the complaint based on Kilburn's failure to post a bond within thirty days of the medical malpractice tribunal's report -- judgment of dismissal subsequently was entered. 2
FOOTNOTES
2 This judgment states: 'This action came on before the Court, Ernest B. Murphy, Associate Justice, presiding, the plaintiff having failed to file a Bond under G.L. c. 231, Section 60B, and upon consideration thereof, it is ORDERED and ADJUDGED: That the Complaint of the Plaintiff, Andrew W. Kilburn as to [all defendants] is hereby dismissed without prejudice.' Because the judgment references the medical malpractice tribunal, we assume that it dismissed only the remaining negligence claims.
As discussed more thoroughly below, we vacate the portion of the judgment that dismissed Kilburn's Eighth Amendment claim [*3] against Black (and any other defendants thereby implicated under a theory of respondeat superior). We also vacate the portion of the judgment that dismissed the negligence claims against the DOC defendants. With the exception of Orlatunji, whose dismissal we affirm, we also vacate the portion of the judgment dismissing the negligence claims against Black and the CMS/UMCH defendants.
Eighth Amendment claims. Kilburn alleges that all of the defendants failed to provide adequate medical treatment in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Specifically, he claimed in his complaint that he suffered 'actual harm' when, during a three-year period, doctors failed to properly treat a 'small' cavity in his tooth, causing an ill-filled cavity to worsen, eventually requiring extraction of the tooth. He further contended that the defendants prevented him from obtaining, and paying for himself, a root canal at an outside facility. 3
FOOTNOTES
3 Kilburn raises an additional argument that does not warrant an extended discussion. He takes issue in his brief with the DOC defendants' administrative policy that requires him to use 'THE WORLDS SMALLEST TOOTHBRUSH,' which [*4] does not reach his rear teeth. It appears that this issue is moot based on concessions during oral argument that inmates now can buy a bigger toothbrush once every ninety days.
'To succeed on an Eighth Amendment claim, a plaintiff-inmate must demonstrate that (1) a prison's conditions of confinement present 'a substantial risk of serious harm'; and (2) prison officials acted with 'deliberate indifference' to inmate health or safety.' Torres v. Commissioner of Correction, 427 Mass. 611, 613-614, 695 N.E.2d 200 (1998). Pertaining to the DOC and the CMS/UMCH defendants, two Superior Court judges allowed motions for summary judgment on the ground that, assuming Kilburn's dental problems constituted a serious medical need, Kilburn failed to offer evidence that these defendants were deliberately indifferent to those serious medical needs.
Summary judgment is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). 'Disputed facts are material only if they have a bearing on the outcome of the case.' Jupin v. Kask, 447 Mass. 141, 145-146, 849 N.E.2d 829 (2006). The moving party bears the burden [*5] of proof. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Good v. Commissioner of Correction, 417 Mass. 329, 332, 629 N.E.2d 1321 (1994). The opponent then bears the burden of introducing enough countervailing data to demonstrate the existence of a genuine material factual issue. Mass.R.Civ.P. 56(e), 395 Mass. 824 (1974); Madsen v. Erwin, 395 Mass. 715, 719, 481 N.E.2d 1160 (1985).
Applying these principles here, Kilburn did not meet his burden of showing the existence of any disputed material facts. Despite the list he provided to this court, which was entitled 'Plaintiff Disputes the Defendants Statement of Material Facts,' none of these facts would have made any difference in the outcome of his case. See Jupin v. Kask, supra . See also Norwood v. Adams-Russell Co., 401 Mass. 677, 683, 519 N.E.2d 253 (1988) ('The [moving party] need not prove that no factual disputes exist, only that there is no genuine dispute of material fact'). This situation differs from the one we faced in Sullivan v. Commissioner of Correction, 69 Mass. App. Ct. 1115, 872 N.E.2d 229 (2007). There, relying on DOC policies and detailed dental charts, the inmate claimed he had been denied teeth cleaning and scaling services for a period of seven and one-half years and [*6] that he twice had been recommended for a root canal. The inmate pointed to specific, material errors in the motion judge's findings of fact and rulings of law, as well as to disputed material facts concerning what constitutes 'community standards' of dental care under DOC policies, whether he was entitled to dental cleaning and scaling services, and the exact period of time during which he had not received a cleaning.
Here, to the contrary, Kilburn merely provided a list of errors in the defendants' summary judgment motion relating to random facts, having little bearing on whether the defendants were deliberately indifferent to his allegedly serious dental needs. He also failed to provide us with the governing regulations concerning inmates' ability to retain an outside dentist. See Rasheed v. Commissioner of Correction, 446 Mass. 463, 475, 845 N.E.2d 296 (2006).
Despite Kilburn's weak summary judgment submission concerning his Eighth Amendment claims, the docket does not reflect entry of final judgment as to the Eighth Amendment claim against Black. Kilburn alleges in his complaint that if Black 'had properly performed [his] work . . . [the extraction] would've never happened.' He also alleges that [*7] Black 'had knowledge of the plaintiff's condition BUT Failed to provide treatment while Kilburn was in [his] CARE & CUSTODY.' 4 Black did not answer the complaint or defend himself in any way in this lawsuit, and we therefore consider the Eighth Amendment claims against him to be outstanding. Also, a determination on remand must be made as to whether any other defendants are implicated under a theory of respondeat superior.
FOOTNOTES
4 During oral argument before this court, counsel for the CMS/UMCH defendants clarified that Black was not included as part of the CMS/UMCH defendants.
Negligence claims. Kilburn alleges negligence in that the dentists (Orlatunji and Black) performed medical malpractice and the other defendants were vicariously negligent through their employment or oversight of the dentists. As to Orlatunji, a medical malpractice tribunal determined, under a directed verdict standard, that Kilburn's offer of proof of negligence was insufficient to raise a legitimate question of liability warranting further judicial inquiry. See G. L. c. 231, § 60B. Kilburn was ordered to post a bond in the amount of $ 6,000. Despite his claimed indigent status, Kilburn did not move for reduction of [*8] the bond, and he never complied with filing the bond. 5 On these grounds, the CMS/UMCH defendants successfully moved to dismiss the complaint. As the order requiring the bond indicated, 'If said bond is not posted within thirty (30) days of the Tribunal's finding, said action shall be dismissed upon filing of an appropriate motion.' Kilburn's request for reconsideration was denied.
FOOTNOTES
5 The record is unclear whether Kilburn was deemed indigent under G. L. c. 261, § 27B. Regardless, a judge is authorized only to reduce, but not to eliminate entirely, the required bond. G. L. c. 231, § 60B. Kilburn did not move for reduction of the bond and, because the offer of proof was insufficient as to Orlatunji, the judge was well within his discretion to order a bond in the statutory amount of $ 6,000 if Kilburn wished to pursue the claim through the usual judicial process. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc. 413 Mass. 670, 678, 602 N.E.2d 570 (1992).
Although Kilburn contends that he submitted to the medical malpractice tribunal over six hundred pages as his offer of proof, the record before us contains only his own conclusory allegations about medical malpractice. There is nothing in Kilburn's [*9] offer of proof, however, demonstrating that Orlatunji's performance 'did not conform to good dental practice' and that damage resulted therefrom. See Anderson v. Attar, 65 Mass. App. Ct. 910, 911, 841 N.E.2d 1286 (2006). Recognizing that the purpose of the tribunal screening mechanism is 'to discourage frivolous claims against health care providers,' Lambley v. Kameny, 43 Mass. App. Ct. 277, 282, 682 N.E.2d 907 (1997), and because the record lacks any sufficient evidence to the contrary, there was no error in the tribunal's determination that the offer of proof failed to raise a legitimate question of Orlatunji's liability.
As to the DOC defendants, the first judge dismissed Kilburn's negligence claims on the ground that the DOC and its employees are not liable for the alleged inadequate care given by an independent contractor, namely UMCH, with delegated authority to provide dental services to Kilburn, citing Thornton v. Commonwealth, 28 Mass. App. Ct. 511, 514, 552 N.E.2d 601 (1990) (Commonwealth not liable under Massachusetts Tort Claims Act for death of child during camping trip run by independent contractor who had been delegated the care of the child by Department of Youth Services). Whether the DOC has a nondelegable duty to [*10] its inmates, however, is not determined by reliance on Thornton because the DOC does not have the same statutory protection as does the Department of Youth Services. See G. L. c. 120, § 10(a), which pertains solely to the Department of Youth Services and Massachusetts training schools.
The issue of whether the DOC is immune from liability by delegating its dental responsibilities to an independent contractor appears to be an issue of first impression in Massachusetts, 6 and one that cannot be resolved on the record before us. Summary judgment was inappropriate here, where disputed material facts exist concerning whether the dentists are 'public employees' under the direction and control of the DOC, acting through its agents. See Kelley v. Rossi, 395 Mass. 659, 662, 481 N.E.2d 1340 (1985) (discussing that nature of doctor's function suggests that in most instances he will act as an independent contractor based on the requisite level of skill, training, and independent judgment); Smith v. Steinberg, 395 Mass. 666, 668-669, 481 N.E.2d 1344 (1985) (same); McNamara v. Honeyman, 406 Mass. 43, 47, 546 N.E.2d 139 (1989) (same). See also Alperin and Shubow, Summary of Basic Law § 20.354 (3d ed. 1996). It is worth noting that the dentists here [*11] do not have the same discretion to exercise their medical judgment as regular dentists. Policies and regulations concerning cleanings, root canals, extractions, and other dental procedures appear to be dictated by the DOC. While the first judge stated that it is 'undisputed that [UMCH] is an independent contractor hired by the DOC . . . [and] was solely responsible' for Kilburn's dental care, that conclusion requires an evaluation of the contract between the DOC and UMCH, as well as the relevant regulations, to determine (1) the amount of control that the DOC has over UMCH's activities; and, conversely, (2) the degree of independent medical judgment that the dentists are allowed to employ.
FOOTNOTES
6 This proposition troubles us in that the DOC, which is entrusted with the care and custody of inmates, then would bear no responsibility in providing inmates with dental services. More specifically, in delegating dental care to the 'sole province' of the contracted medical provider, as argued in the brief of the DOC defendants (and the 'professional judgment' of their dentists), the DOC also would have no inclination to oversee whether inmates receive the services for which the medical providers [*12] are being paid, as well as the types of services (and whether they measure up to community standards of dental care) that the inmates are receiving.
We mention that the issue of third-party beneficiary also is connected. In Sullivan vs. Correctional Medical Services, Inc., Appeals Ct. No. 07-P-964, 2008 Mass. App. Unpub. LEXIS 446 (June 27, 2008), which was argued the same day as the within case, the DOC argued that an inmate, as an incidental beneficiary, could not sue on a contract between the State and its contracted medical provider. But see Ogunde v. Prison Health Servs. Inc., 274 Va. 55, 63-64, 645 S.E.2d 520 (2007) (holding inmate is 'clearly and definitely' intended third-party beneficiary of contract between Virginia correction department and its medical services contractor, based on language and purpose of contract to provide health care services to inmates); Miller v. Corrections Corp. of America, 239 Fed. Appx. 396, 396-397 (9th Cir. [Alaska] 2007), citing Rathke v. Corrections Corp. of America, 153 P.3d 303, 310 (Alaska 2007) (holding that prisoners are intended third-party beneficiaries of contract between Alaska correction department and private company housing inmates). We point out that the DOC should not be able to [*13] have it both ways: immunity from liability based on an inmate's lack of standing to sue as an intended beneficiary of a contract, and also, at the same time, immunity from liability by delegating its dental responsibilities to an independent medical provider.
We agree with Kilburn that the third judge abused his discretion in entering a judgment dismissing the negligence claims against Black and the CMS/UMCH defendants, except Orlatunji. The record indicates that the medical malpractice tribunal convened and made a determination only concerning Orlatunji. Despite alleging claims of medical malpractice, a medical malpractice tribunal never convened and, therefore, never determined the sufficiency of the offer of proof against Black and the other CMS/UMCH defendants. 7 G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5 ('Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal . . .'). Those defendants thus improperly were dismissed.
FOOTNOTES
7 In fact, the record shows that, despite being served with a summons and a complaint, Black neither responded nor had an attorney file a notice of appearance in this lawsuit. Kilburn subsequently filed [*14] motions for default judgment, pursuant to Mass.R.Civ.P. 55(a), 365 Mass. 822 (1974); discovery, pursuant to Mass.R.Civ.P. 26, as amended, 423 Mass. 1401 (1996); and for final judgment supported by an affidavit, pursuant to Mass.R.Civ.P. 54, as amended, 382 Mass. 829 (1981), against Black. For an unknown reason, no judge ever ruled on these motions before the third judge ordered judgment dismissing the negligence claims against Black (and the CMS/UMCH defendants) once Kilburn failed to file a bond after the tribunal's decision concerning Orlatunji. Kilburn unsuccessfully move for reconsideration of this last order.
Accordingly, we vacate the portion of the judgment that dismissed Kilburn's Eighth Amendment claims against Black and any other defendants thereby implicated pursuant to a theory of respondeat superior, and remand for such determination. We also vacate the portion of the judgment that dismissed the negligence claims against the DOC defendants. Furthermore, we vacate the portion of the judgment dismissing the negligence claims against Black and the CMS/UMCH defendants, with the exception of Orlatunji, whose dismissal we affirm. In all other aspects the judgments are affirmed. [*15] We remand the case to the Superior Court for proceedings consistent with this decision.
So ordered.