Gilman persuades trial court judge to dismiss med-mal case

BOSTON (Nov. 5, 2014) – Pamela S. Gilman recently persuaded a Massachusetts Superior Court judge to dismiss a medical malpractice case following the plaintiffs’ emergency request to delay the start of trial.

Gilman successfully argued that the complaint should be dismissed because the plaintiffs failed to prosecute the case. The plaintiffs, parents of a deceased child, requested a continuance on the eve of trial after their expert witness changed his expected testimony on causation.

The plaintiffs alleged that Gilman’s clients, a midwife and a nurse, had failed to appreciate ominous fetal heart rate patterns and effectuate an earlier delivery of their baby in November 2008, resulting in severe brain damage, and, ultimately, the baby’s death nearly four years later.

On the day trial was to begin, the plaintiffs advised the trial court judge that, contrary to prior disclosures, their expert neurologist no longer believed that the injury to their child occurred during labor. Accordingly, they were seeking additional time to retain a new expert.

Gilman opposed the plaintiff’s emergency motion for a trial continuance. After considering the equities on both side, the trial court judge denied the plaintiffs’ motion and ordered the case dismissed, finding that there was no showing that the plaintiffs could eventually retain a causation expert to support their case.

“Although the turn of events was unanticipated, I am pleased the judge agreed that the equities involved favored dismissal,” Gilman said. “Any delay in trial would have caused significant hardship to my clients, both of whom live out of state and had arranged to come to Massachusetts for what was expected to be at least a three-week trial.”

About Barton Gilman

Barton Gilman is one of New England’s leading civil litigation law firms with offices in Boston and Providence. Its experienced trial attorneys appear regularly in the federal and state courts of Massachusetts, Rhode Island and Connecticut. The Providence Business News named the firm as one of Rhode Island’s Best Places to Work in 2014.