Bond requirements for malpractice suits that fail to pass the screening panel

Faircloth v. DiLillo, — N.E.2d —, Mass. , 2013 WL 3957794 (Mass. 2013)

Under Massachusetts statute, when a screening panel determines that there is no sufficient evidence to verify the plaintiff’s liability allegations against the defendant, “the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of $6,000 payable to the defendant … for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment.” For indigent plaintiffs, the judge who headed in the panel “may reduce the amount of the bond but may not eliminate the requirement thereof.”

The Massachusetts Supreme Court ruled in connection with that statute that the judge may not refuse to reduce the bond’s amount upon finding that the plaintiffs’ attorney is paying the bond. Rather, the judge “should evaluate the reasonableness of the plaintiff’s continued pursuit of the action” and “whether a litigant … able to pay … the expenses … would choose to obtain the bond.”  The Court has delivered a similar ruling in Cruz v. Siddiqi, — N.E.2d —, Mass. , 2013 WL 3957799 (Mass. 2013).