Howard Cooper (00:25):
Now with the camera you see, do we get time for hair and makeup?
Tim Sweetland (00:25):
What was that?
Howard Cooper (00:25):
We got time for hair and makeup?
Tim Sweetland (00:25):
No. It's fifteen past.
Maria Davis (00:25):
When was the last time you were here?
Mary Azurito (00:26):
We can't share.
Howard Cooper (00:26):
I had a case in the front courtroom, probably it was pre-COVID. So, it's been a while.
Maria Davis (00:37):
I was going to say, I haven't worked in that section since Roger Donahue.
Howard Cooper (00:38):
It was a Subaru case.
Maria Davis (00:38):
Oh, okay.
Howard Cooper (00:38):
From way back when. But I always hear how good things are here.
Maria Davis (00:53):
We don't change much. We really don't. We're dysfunctional, but somehow or other we get some work done. That is one is fine, we only had two judges, one of them got sick. So, back when [inaudible 00:01:02], so we had a very new judge and Judge Julian.
(01:08)
So, I was telling him, we went back to the old ways last... A week ago, Monday, Judge Julian had a jury trial. It had been going for five days. I was covering it on Friday and the clerk said, "Oh, it's going to go to the jury Friday." You don't want it, Judge. This is nowhere near going to the jury. He said, "You're absolutely right. Monday afternoon we'll go to jury." So we brought in a judge, which we haven't done in months. That judge impaneled his jury that just came back with a verdict. Cause you know, that's not actually [inaudible 00:01:40].
Howard Cooper (01:33):
I was thinking as I was driving back here about the first case I tried, was for [inaudible 00:01:43] Patrick Clayton.
Maria Davis (01:33):
Oh, really?
Howard Cooper (01:42):
Yeah, it's a personal injury case. Every court officer told me that no jury had come back with more than $50,000 in any personal injury case in years, and that I should settle. And I said, "If they'd offer me something, I'd settle." The jury came back with $50,000.
Maria Davis (02:21):
Because remember James Brady kept a list of all of the verdicts from when he got on the bench. He had this yellow piece of paper. Do you have to look at it?
(02:26)
He was a great judge. He was very smart. I liked him, because he really wanted to help counsel. He's coming right back to us [inaudible 00:02:41].
(02:37)
He was here, and when you go to the other end, Radcliffe couldn't do it. He would say, "What? Why do we do everything in the afternoon for motions? Wouldn't it be great if we could motion at seven..." We got in at seven, he's say, "You want it at seven or you want it at eight?" Make it special to them, people loved it and it really was. If you were a parent and your child was here.
(02:37)
Don't even have to question, just tell us that and the motion would be rescheduled. But it was very effective. I haven't known too many others that were like that. I think it was [inaudible 00:02:45].
(02:37)
I'm going to wait a couple more minutes because he's coming. He'll be down right after we get in.
Howard Cooper (02:37):
Criminal Court is usually upstairs. But it's all the court.
Megan Huggin (02:37):
The first one [inaudible 00:02:45], actually was in this courtroom.
Maria Davis (02:37):
Who was it?
Megan Huggin (02:37):
Jeffery Tennison.
Maria Davis (02:44):
Oh my gosh, yeah.
Megan Huggin (02:45):
Yep, that was a long time ago. And then Jeff had [inaudible 00:03:08] in that courtroom.
Maria Davis (02:45):
Oh, okay.
(02:45)
They have beautiful courtrooms but the sound. It was like a trip and fall ready to happen with all the tech and all the things that they brought out.
Megan Huggin (03:07):
Yeah.
Maria Davis (03:07):
It's not ideal, but it's a beautiful floor.
Megan Huggin (04:14):
One of the cases that I had a couple of years ago, I guess a lot of years ago now, but the jury was out for a full week, and there's a lot to do around here, I discovered.
Maria Davis (04:19):
There is. Now, and of course even around the area the government has a nice-
(04:19)
It's a nice little gate. And the building is now going to be two hundred years, next year.
Megan Huggin (04:25):
Is it really?
Maria Davis (04:25):
Yeah. One hundred years old, February, I think.
(04:25)
So, I know weird things about it. (laughing)
(04:25)
It's kind of funny to say, we have a lot of institutions. I said "I was not there for that, when they had the good party 200 years ago, I wasn't here. I don't have any knowledge of the first." They were like, "Oh, Mary, we know, we know. But we know that you must know." I said, "Hm." It's just been a home away from home with people that work with me.
Megan Huggin (04:25):
Yes it would, we talked about that.
Speaker 1 (04:25):
You made it! How are you?
Speaker 2 (04:25):
Okay. Okay.
Maria Davis (04:25):
He said he'd come right down. You know, he said, "Don't worry, I'm going to come."
(04:25)
It's too quiet in here.
Howard Cooper (08:55):
(laughing) What would you like us to do? Should we break out in song?
Speaker 2 (08:55):
Court, all rise. This honorable court is in session.
Judge (09:35):
You may be seated.
Automated (09:44):
This meeting is being recorded.
Maria Davis (09:47):
Your Honor, if I can call the next case, it is 2682CV00071, Patrick W. Clancy et al versus Jennifer A. Tufts, MD et al. If counsel can all introduce themselves for the record, please.
Howard Cooper (09:59):
Afternoon, Your Honor. Howard Cooper for the plaintiffs and with me are my colleagues, Maria Davis and Megan Huggin.
Megan Huggin (10:07):
Good afternoon.
Judge (10:08):
Good afternoon.
Mary Azurito (10:08):
Good afternoon, Your Honor. Mary Azurito from Azure Cohen. I represent Dr. Jennifer Tufts and Astor Mental Health.
Judge (10:15):
Okay, good afternoon.
Tim Sweetland (10:15):
Good afternoon, Your Honor. Tim Sweetland of Sloan & Walsh on behalf of the defendants, Rebecca Gelata and South Shore Health System.
Howard Cooper (10:18):
Okay, good afternoon. On behalf of the [inaudible 00:10:26].
Tim Sweetland (10:26):
Thank you, Your Honor. Your Honor, it is our position that the claims in this case are barred by application of chapter 123, section 36B, which explicitly provides immunity to mental health providers, like these defendants, for actions like this brought on behalf of an injured third party as a result of the action of the mental health provider's patients.
(10:58)
Fundamentally, first and foremost, I don't think there's any question that chapter 123, section 36B applies to this action and is in fact the only means by which the plaintiff may seek to recover.
(11:17)
If you read just the plain language of the statute for starters, and I'll just read directly from it, "There shall be no duty owed by a licensed mental health professional to take reasonable precautions to warn, or in any other way protect..." Again, so that would be beyond just a failure to warn claim, "... a potential victim or victims of said professional's patient and no cause of action imposed against a licensed mental health professional for failure to warn or in any other way protect a potential victim or victims of such professional's patient unless two very specific circumstances are implied," which, as we will get to, do not apply in this case.
(12:03)
It's unquestioned that these defendants are mental health providers. It's unquestioned that the allegations are brought by Mr. Clancy on behalf of the deceased children who were allegedly killed by the patient of the mental health providers. And so, the statute applies.
(12:21)
The case law and the cases that have interpreted the statute have made overwhelmingly clear that the only means by which a plaintiff can recover in this situation is through the terms of the statute, because the statute has abrogated any common law duty that a mental health professional would owe.
(12:42)
And the case most directly on point would be Shea V caritas Carney Hospital. It is cited extensively in our papers, but if I could just read a direct quote from that decision.
Judge (12:55):
Go ahead.
Tim Sweetland (12:58):
"In a ruling that chapter 123, section 36B clearly abrogated any common law duty owed by a mental health professional, the court held that a statute cannot be interpreted as affecting a material change in, or appeal of, the common law unless the intent to do so is clearly expressed."
(13:20)
The court then goes on to state here, "The statute explicitly states that there shall be no duty owed by a licensed mental health professional to take reasonable precautions to warn, or in any other way protect, a potential victim or victims of said professional's patient and no cause of action imposed against a licensed mental health professional for failure to warn, or in any other way protect, a potential victim or victims of such professional's patient unless the statutory conditions..." The exceptions that we'll get to in a minute, "... are met." The court then goes on to say, "Given this, it is impossible to glean from such strong language the intention to permit additional liability based on common law."
(14:02)
So, not only does the statute apply, it is the only mechanism by which the plaintiff can recover. The cases that the plaintiff cites in his opposition are in a posit. The most descriptive one would be Coombs, which is a case in which a regular physician was found to owe a duty to all foreseeable persons harmed by his failure to warn a patient about a specific course of treatment.
(14:29)
If I remember correctly, the facts of that one, Your Honor, were a doctor, a regular doctor prescribes a medication that has the side effect of drowsiness, patient gets into a car, falls asleep, crashes and injures someone.
(14:41)
In that case, the court held that a regular physician can be at least arguably held liable because they would owe a duty to that injured person. The difference between that case and those cases, and the instant case is that this case involves mental health professionals and the legislature has determined that they have a different duty and they can-
Tim Sweetland (15:00):
... has determined that they had a different duty and they can only be held liable if the terms of the statute are met. So that's first and foremost, Your Honor. The statute applies. It applies to this case and it's the only means by which the plaintiff can recover. Let me now turn to the specific allegations at issue and what the statute actually requires. So under the statute, to get around the immunity, the plaintiff must establish... And again, I'll read directly from it, "That A, the patient has communicated to the licensed mental health professional an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims. And the patient has the apparent intent and ability to carry out the threat, and the licensed mental health professional fails to take reasonable precautions to prevent it. Or B, the patient has a history of physical violence, which is known to the licensed mental health professional.
(15:58)
And the licensed mental health professional has a reasonable basis to believe that there is a clear and present danger that the patient will attempt to kill or inflict serious bodily injury against the reasonably identified victim or victims. And the licensed mental health professional fails to take reasonable precautions to prevent-"
Judge (16:13):
But isn't that alleged though?
Tim Sweetland (16:16):
It's not alleged. I'm getting to that, Your Honor.
Judge (16:17):
Okay, go ahead.
Tim Sweetland (16:18):
The allegations that have been made in the amended complaint do not rise to the level of being able to survive a motion to dismiss. I fully understand that this is a Rule 12(b)(6) and we're at the very early stages of this case. And generally the court will accept the allegations contained in the plaintiff's complaint as true. But that is only true if the allegations are not speculative, they are not conclusory, and there is a good faith basis for them in fact. And I would suggest, Your Honor, that in this case, looking at the totality of the circumstances, those three items are not there. These allegations are speculative, they are conclusory, and they do not have a good faith basis in fact. If I can just very briefly go into a little bit of history here because I do think it is important. This case was initially filed in January of 2026. The original complaint that was filed is incredibly detailed. I believe it was 86 paragraphs. It was incredibly specific. It talked about all sorts of things that Mrs. Clancy communicated to the defendants verbatim at specific interactions and specific office visits with messaging. It was clear that the plaintiff had access to Mrs. Clancy's treatment records because they were direct quotes from the records contained in the allegations in the original complaint. Nowhere in that 86 paragraph complaint did the plaintiff ever allege that Mrs. Clancy ever communicated to these defendants that she had thoughts or an intention, much less an explicit threat, excuse me, to harm or to kill her children in any way. It wasn't in there because that information is not contained in the hundreds of pages of medical records that the plaintiff has access to in this case, Your Honor.
Judge (18:18):
I have on page 11 of the amended complaint in 53 that she reported her intrusive thoughts to Dr. Tufts thoughts of harming herself and harming her children.
Tim Sweetland (18:33):
Right.
Judge (18:35):
So go ahead.
Tim Sweetland (18:37):
And I'll get to that.
Judge (18:38):
Yeah.
Tim Sweetland (18:39):
My point is that no allegation about communicating any intention or thoughts about harming or injuring or killing the children was ever raised in this case until after we served the plaintiff with a motion to dismiss. The plaintiff asked for an additional, I believe they asked for 30 days to oppose it. We gave it to them. Right when that 30 days was getting ready to expire, we didn't get an opposition. Instead, we got an amended complaint in response to our arguments. Now for the very first time, the plaintiff makes an allegation that Mrs. Clancy made these communications to the defendant. So I'd ask the court to consider that context when ruling on this motion. But getting to the actual allegations that are before us today in the amended complaint, essentially they're still insufficient to survive a motion to dismiss and here's why.
(19:34)
What the allegations say are that Mrs. Clancy allegedly told her husband at the time, Mr. Clancy and her mother, that she had intrusive thoughts about harming her children. And then the plaintiff goes on to allege therefore a reasonable jury could conclude that she also made those communications to the defendants. That is a leaf, it's speculation and it's impermissible under the pleading rules, Your Honor. They also allege upon information and belief, Mrs. Clancy communicated these type of intrusive thoughts about harming or killing her children to the defendants. They do not explain what the factual basis for that allegation is at all, even when served with the motion to dismiss. There's been no affidavit from Mr. Clancy, from Mrs. Clancy, from anybody. There's absolutely nothing to support those allegations. They're speculative, they're conclusory. And I would also point out that they are directly contradicting not only by what's in the medical record, but by the plaintiff's own amended complaint.
(20:38)
The only specific allegation related to these type of communications is at paragraph 57 of the plaintiff's amended complaint, at which time the plaintiff references an exchange between Mrs. Clancy and my client, Rebecca Jollotta, in which Mrs. Jollotta specifically asked Mrs. Clancy if she has ever had any thoughts about harming or injuring her children. And she answers no. And that is the only specific allegation related to any of that that's included. I would also point out, Your Honor, that even if Your Honor were to accept that these allegations are not speculative or not conclusory and that there is a good faith factual basis to support them, they still do not rise to the level of what is required by chapter 123, section 36B. What the statute requires is that there is an explicit threat to kill or to inflict serious bodily injury upon a reasonably identified victim.
(21:45)
The plaintiff does not allege at any point in time in the amended complaint that Mrs. Clancy ever communicated to any of the defendants that she is an explicit threat to kill or to inflict serious bodily injury on her children. So for all of those reasons, Your Honor, we would ask this court to rule one, that chapter 123 section 36B applies, that it is the only mechanism by which the plaintiff can recover, that the allegations contained in the plaintiff's complaint are not sufficient to survive a motion to dismiss because they are speculative, they are conclusory and they have not explained a good faith factual basis for any of it. And beyond that, there is no allegation that Mrs. Clancy ever made an explicit threat to kill or to injure her children to any of the defendants.
(22:41)
I would be remiss, Your Honor, if I didn't acknowledge that the facts of this case are as horrible and as tragic and as awful as a case that any of us will ever be involved in. I am not immune to that and I recognize that fully for Mr. Clancy with that question. But the legislature has determined that because of these exact events are so unpredictable and so unpreventable that it is patently unfair to hold mental health professionals responsible for them unless the specific exceptions to the statute are made. And for those reasons, we would ask that, Your Honor, allow a motion to dismiss with prejudice.
Judge (23:25):
Okay, thank you. [inaudible 00:23:27].
Speaker 3 (23:28):
Thank you so much, Your Honor. I join in my brother counsel's arguments and have only a very few things to add to his excellent presentation. I think it's important to recognize here that the pleading standard in this country has changed a little bit since those of us with gray hair were in law school. Under Bell Atlantic versus Twombly and all of the cases that followed it, the pleadings are held to a different standard. They must show plausibly a plausible right to relief, not just a set of facts which is consistent with the right to relief. And that becomes an important standard for this case, Your Honor, because if you look at the references that Attorney Sweetland pointed to, plaintiff's counsel has suggested in their opposition that Mrs. Clancy was clear with her providers and that she had an intent to kill. The paragraphs that they cite to, Your Honor, all contain every one of them, that information and belief language.
(24:32)
So if you look at paragraph 66 and 67, she told her mother, she told her husband. There's no clear evidence that she told her providers. Paragraph 79 on information and belief. Paragraph 83, information and belief. Paragraphs 101, Your Honor, information and belief. And you pointed the court to page 11 where there's a reference to my client, Dr. Tufts. On that same page where the information and belief allegation is made, there are words attributed specifically to the records and none of them, none of those words contain an explicit threat or an explicit intention to harm anyone. Plaintiff's counsel's probably going to argue based on some of the cases already mentioned that there's a balancing test here, and that the public safety has to be balanced against this immunity argument. And I want to return your court, Your Honor's attention to the Coombes versus Florio cases and the other cases that esteemed counsel has cited in this case.
(25:37)
In every one of those cases, Your Honor, there was a foreseeability issue. A doctor prescribing a medication that has a sedative effect. There's a foreseeability aspect to if that patient goes out and drives under the influence of that medication, there's a foreseeable accident. In this case, based on what we know, based on hundreds of pages of records, based on, and I realize it's a Rule 12 motion and Your Honor can't really take into account the testimony in the other case. There is sworn testimony in this case, Your Honor. If there was any plausible right to relief based on any actual evidence, plaintiff's counsel would've brought it to your attention. There's no foreseeability. Everybody was shocked at this outcome and it is undeniably tragic. There was no foreseeability. There's no balancing test required. The statute is clear. There's no evidence of an explicit threat except coached on information and belief.
Judge (26:31):
Okay.
Speaker 3 (26:31):
Thank you, your honor.
Judge (26:32):
Thank you so much.
Howard Cooper (26:34):
May I speak from the podium, Your Honor?
Judge (26:35):
Yeah, go ahead.
Howard Cooper (26:36):
It allows me to actually see my notes. Thank you, Your Honor. Again, good afternoon. Howard Cooper for not just Patrick Clancy individually, but also for Patrick Clancy as he is the representative of his three murdered children. Cora, five years old, Dawson, three years old, Callan, eight months old. What you just heard is a closing argument, Your Honor, completely inappropriate for a motion to dismiss at this stage. But let me start by what the complaint actually alleges and make three points upfront, which I will then expand upon. As alleged here in this complaint is not a duty to warn. What is alleged is negligence. There are at least eight different allegations as to why the defendant's conduct fell below the standard of care, and was grossly negligent and ultimately became a substantial cause. The complete mismanagement of Lindsay Clancy's mental health care became the substantial cause of her murdering her three children.
(27:53)
Now, Your Honor, the defendant's motion fails procedurally, factually and on the law. And let's start with the procedure. This is a rule 12 motion. I know the court needs not have me remind it that everything in the complaint and all reasonable inferences therefrom are to be taken as true. Bell Atlantic nor any other case, Iqbal, et cetera, does not alter that basic pleading standard. It's an amazing thing to me for counsel to suggest that we should have definitive information as though we're about to close to a jury as opposed to what we know upfront. You know who hasn't testified yet, Your Honor? Lindsay Clancy. And we allege in our complaint that she is going to confirm that she told these defendants that she had homicidal ideation. And even in the notes from which Your Honor needs to make reasonable inferences, and I will go through them as alleged in the complaint, it is clear that even though this isn't a duty to award case, we have pled a duty to award case.
(29:13)
So the defendants are setting up here, Your Honor, a straw claim that doesn't exist. And by the way, Your Honor, as the Supreme Judicial Court declared in Polay v. McMahon from the SJC, allegations made upon information and belief are to be taken as true with all reasonable inferences therefrom. If they're spending half their time complaining about that, Your Honor, they're complaining about things that the court must at this stage accept is true. Also, procedurally, Your Honor, every case that they rely upon is a summary judgment case or the case went to trial. Not one of them is a rule 12(b)(6) case because in order to determine, even if we were just talking about a 36B due-
Howard Cooper (30:00):
Even if we were just talking about a 36B duty to warn case, which we're not, the court would need a full record to determine whether the statute A applies and B has been satisfied. Second point upfront, Your Honor, the duty to warn statute does not preempt the field of tort law. And no Massachusetts court has stated that. And when I get to it, in fact, the SJC and the Superior Court, Judge Gantz has stated the opposite. This statute deals with the issue of whether a mental health provider is obligated to disclose what is confidential HIPAA information in an effort to warn the target of a threat or to do things like reach out to the police. That's what already other way to protect means. If the legislature had decided to preempt the world of torts to immunize mental health providers and doctors from their negligence, especially the extreme negligence committed here, they were required to say so in the statute and they didn't.
(31:30)
And for that case, Your Honor, I commend you to the case that we cited in our brief, Riley v. Davison Construction. Crystal clear, if the legislature is going to immunize a mental health provider or any other healthcare provider from tort liability, they must say so in the statute. This statute deals narrowly about the obligation of the mental health provider to actually go to the intended victim and provide a warning. Third, Your Honor, as I said, this is not a failure to warn case. We didn't bring it under that statute. It's a wrongful death medical malpractice case. There is a claim against South Shore for violating the HIPAA statute, but it's not material to the courts, the motion before the court today. So Your Honor, let me start first in going into a little bit more detail about why, if the court assumes for the sake of argument that this is a duty to warn case, the first amended complaint more than accurately and adequately pleads such a cause of action compliant with the statute.
(32:49)
But before I go into that, let me just say, Your Honor, complaints get amended all the time. Okay? And I don't think I heard my brother say this, but it's not a matter of a lack of good faith when you get additional information on a particular issue raised in a motion to dismiss that does not meet the complaint head on, but rather constructs a straw claim, namely a duty to warn, to go gather additional information. We have alleged in good faith in this case, and I said this previously, that we believe that Lindsay Clancy, once her Fifth Amendment issues are resolved, one way or the other, will testify that she told these defendants explicitly that she had homicidal ideation, that she was worried about something awful happening to her kids. Can't imagine a more explicit threat. Defendants seem to think that you need to have a date, time, place, and manner in which that threat's going to be delivered. That's not what the statute says or requires, but let me just run through what's in the first amended complaint, Your Honor.
(34:06)
The first amended complaint alleges that Patrick and Lindsay were married in December of 2016 and that when they had their first two children, Lindsay suffered from postpartum depression meaningfully. And that when they had their third child, Callum, who was born in May of 2022, Lindsay ultimately came to experience far more significant stress and anxiety and that she sought help. She sought help from the defendants here each at different times, but overlapping. Those defendants, Your Honor, failed to coordinate with each other. They failed to talk to each other. Dr. Tufts failed even to see in person Lindsay Clancy. The complaint lays out, and this I'm not going to go through, Your Honor, the drugs that were prescribed here enough to...
(35:03)
If a jury hears this, Your Honor, that these drugs were not being coordinated or they were the wrong drugs, that there was no blood plasma tests done and the like, and I'll come back to some of this in a bit in terms of the allegations of the departures from standard of care, they will have no trouble concluding that this negligence was a proximate cause and a cause in fact of Lindsay Clancy's psychosis being left untreated to the point where she engaged, had a foreseeable risk of harm to her children.
(35:38)
My sister counsel says we don't have an affidavit about foreseeability. That's a jury issue, Your Honor. But you know what the facts allege? The facts allege that these healthcare providers asked about homicidal ideation. You don't ask a question about homicidal ideation unless you are concerned that your patient may go out and hurt somebody. In this instance, her children. There is overwhelming allegations and frankly there's overwhelming evidence in this case if you want to reference the criminal trial, which I think all the lawyers agree would be improper to do, that these doctors were on notice that this was a disaster waiting to happen and they mismanaged the medication, they mismanaged the treatment, they failed to engage in proper treatment, they prescribed drugs without coordination and some of those drugs were absolutely contraindicated. And if we were at the malpractice tribunal stage, Your Honor, we would have our experts saying that.
(36:40)
But in defeating a motion to dismiss, we don't need to be doing that. These are not conclusory allegations. The lead case in Massachusetts about conclusory allegations is Schaer v. Brandeis University. I'm sure, Your Honor is familiar with it. It's a student disciplinary proceeding that was commenced after a sexual assault by the accused on another student. That student filed papers saying that the process afforded to him by Brandeis University was insubstantial and they had allowed hysteria to be injected into the process and there was no explanation whatsoever for those allegations and they said it's just a conclusion. You can't say hysteria without backing it up. But we backed it up in this complaint. The evidence that counsel apparently want you to view in the most favorable light to them the exact reversal of the standard here, the evidence that Lindsay Clancy told her mother and told Patrick that she was having homicidal thoughts towards her children is evidence since she was...
(37:57)
Dr. Tufts at the criminal trial testified what a terrific reporter she was. It is evidence that she told them as well. A jury could so conclude, but we have more, Your Honor. We have specifically alleged, yes, upon information and belief, but we have a good source for this, that Lindsay Clancy will say that she made clear her concern about harming her children to both of these individual defendants and their employers are on the hook for the negligence of their employees. Here's some language from the first amended complaint, Your Honor.
(38:36)
Lindsay reports that she's suspicious of others, that she's suicidal, that she's concerned something bad is going to happen, does not want to be left alone. She's worrying about her kids, especially the baby, racing thoughts, frustrated and scared, not connected to her body, panic state, feeling afraid as something awful might happen. Intrusive thoughts over and over again, harm to the children. And that's from the notes that we have. Notes, by the way, that Kevin Reddington made a huge point during the criminal trial to say were wrong and incomplete. And despite Dr. Tufts' denial that she meant something else, we actually have evidence of that, that the notes can be properly questioned. And the idea that a [inaudible 00:39:33] motion, the lawyers are going to stand up and tell you that you have to be limited by what's in the notes is absurdity. That's not how this process works.
(39:42)
If that's the truth at summary judgment, I'm sure we'll be back here. And by the way, just to be clear, Your Honor, I merged things said to Dr. Tufts with things said to certified practitioner Nurse Jollotta. I didn't mean to suggest that each of those things had been said, but a combination of those things was said and reported. December 2nd, Your Honor, Lindsay reports she no wants to be here, feels like she's going to die, but doesn't care. Unmanageable anxiety about her children, especially the baby. Think about this, Your Honor, we've alleged this.
(40:19)
First, when a mother with children, the age that we're talking about, reports to a doctor that she's thinking about killing herself and mentions her children, afraid for her children and the baby, there is of course an imminent threat of harm. She's the primary caretaker. Even if it was just suicidal ideation, who's going to watch the kids if she kills herself? The doctors were on notice of that. Secondly, Your Honor, the literature, and this is affirmatively pled in the first amended complaint, the literature confirms that when you have a mother with small children, and we allege that. I mean, we haven't attached articles because we're not at that stage yet, but the standard of care is to recognize the danger to the children when there is a potentially suicidal mother and there need not be a specific date, time, and manner communicated. In fact, Your Honor, it would be illogical for the statute to require that because just think about it, what mother is going to report that she feels like she's a danger to her kids and risk losing her kids?
(41:43)
Okay, so before you even get delete medical malpractice standards, which we will, pure logic and rational inferences from what's alleged in the complaint tells you all that you needed to know, which is these doctors understood there was a real threat to the children. They asked about it and exactly what they asked about and foresaw and were worried about tragically came to be.
(42:13)
Now, Your Honor, there's more as we get into December, feeling afraid as if something awful might happen. And that gets repeated over and over again, including in these 17 minute Zoom calls that Lindsay Clancy has with Dr. Tufts. We then talk about in the complaint what it was she was reporting to Patrick and what it was reporting to Paula Musgrove, who is Lindsay Clancy's mother, who also is a nurse, Your Honor, and who also hasn't been deposed, but who was communicating with at least one of these defendants. And Your Honor, we contend that ultimately discovery will confirm what we have a good faith basis for pleading, that the situation with Lindsay Clancy, which had gone on for months by the time we arrive into the fourth week of January and this horrible tragedy takes place, but again, just focusing on their own notes, crazy depressed, becoming a disaster, messed up beyond repair, that's paragraph 64.
(43:34)
We cite the tests that were done with regard to the level of depression and anxiety that were not responded to appropriately. And by the way, even though Dr. Tufts testified at the criminal trial what a wonderful reporter Lindsay Clancy was so that she didn't have to go actually talk to Nurse Jollotta who was prescribing other psychotropic medication, in her own notes, she reports Lindsay as having poor insight. Well, I don't know which one it's going to be, but if you're relying on your patient who you think has poor insight to answer a question whether you have homicidal ideation, that's a problem.
(44:20)
Your Honor, on what the complaint actually says, here I'm not going to go through it, but if you start at page 17, paragraph 82 and go forward, you will see a long list of departures from the standard of care having nothing to do with a failure to warn or take protections like calling the police, but have everything to do with the general tort duty that the legislature did not abrogate by dealing with the issue of when a mental health provider needs to pick up the phone or drop a dime and disclose HIPAA protected information about their pa...
Howard Cooper (45:00):
... and disclose HIPAA protected information about their patients, which is what the statute is directed at. That statute does not say it does away with the common law duty of torts generally. It's not a logical, fair, or even rational interpretation of the statute. So bottom line, Your Honor, is if the statute applies, we've pled the case. But now let me talk about why the statute does not apply. And Your Honor, again, I directed you to paragraph 82 and I am not going to repeat on the record all of the failures of these defendants that constitute departures of standard of care. I'm just going to focus on the law for the moment.
(45:56)
So counsel, my friend cites Shea v. Caritas Carney Hospital, which is an appeals court decision from 2011. But he ignores subsequent SJC decisions like Williams v. Stewart, a Judge Gaziano case from 2018, seven years later, and from the SJC in which Judge Gaziano says, "The statute does not do away with common law duties or in any other way protect a defendant." I'm going to hand up with the court's permission a case, which is an out-of-state case from New Jersey.
Judge (46:42):
Yeah, as long as you give-
Howard Cooper (46:42):
I will.
Judge (46:44):
... yeah, one to the other side. Thank you.
Howard Cooper (46:55):
This is an out-of-state case from New Jersey, which I recognize is not binding on a Massachusetts court, but it's so on point because it deals with a virtually identical statute and a situation similar to what we have here. And in this case, which is Marshall v. Klebanov, 2006 case, at page 38, Your Honor, says, "We hold that the statutory immunity provisions of New Jersey SA 2A62A16," which is their duty to warrant statute, "do not immunize a mental health practitioner from potential liability if the practitioner abandons a seriously depressed patient and fails to treat the patient in accordance with accepted standards of care in the field."
(47:52)
It goes on at the next paragraph, although I'm skipping some language, to say, "A practitioner's common law duty to exercise that degree of care, knowledge, and skill for his or her patient that would be followed by any reasonable member of the profession under like circumstances exists separate and apart from any duty to warn and protect, pursuant to the New Jersey statute." Counsel want you to read this statute as immunizing them from their own medical malpractice in the non-duty to warn context. Crazy. I don't think that argument can be made with a straight face.
(48:41)
I do call to your attention, Your Honor, Medina v. Pillemer, which is a Judge Gants decision from 2005 when he was sitting in the Superior Court. And again, he says failure to warn patient with regard to the operation of a motor vehicle. That is negligence that comes under the generalized danger foreseeable from a failure to tell a patient about the impact a drug will have on them so that they don't drive. Similarly, Your Honor, our other cases that we've listed in our brief, Whitaker v. Sarsano, Judge Wilkins' decision. And let me just comment briefly again on the Riley v. Davidson Construction Company, because you are being asked by the defendants to engage in statutory interpretation and I want to be clear about the guideposts if this court decides to do so because it somehow is convinced that this is a duty to warrant case, which it isn't.
(49:59)
First, statutes must be read logically and consistent with common sense in their plain language. Statutes cannot be read to go beyond the clear intent of the legislature. In the Riley case, the court dealt with an analogous issue about whether a certain area of claims under the law were preempted by a statute. And here, Your Honor, the court came up and followed the principle, and this is from the SJC, that if the legislature decides to foreclose and immunize anybody from liability, they must say so.
(50:51)
And nowhere in this statute will you find language that says, "Mental health providers, separate and aside from whether they appropriately warned somebody or took other protective action vis-a-vis the third parties cannot be sued for medical malpractice." It's not there and it provides no basis whatsoever for a motion to dismiss. Unless Your Honor has any questions.
Judge (51:24):
No, I though it was very well argued by all three of you. I though you all did an excellent job. You want to say something?
Tim Sweetland (51:30):
May I just be permitted to-
Judge (51:32):
Let me ask you a question.
Tim Sweetland (51:33):
Yes.
Judge (51:35):
Just briefly. Talk to me about Williams v. Stewart vis-a-vis your argument about Shea.
Tim Sweetland (51:43):
Well, I would interpret the plain language of the Shea decision, not only to apply to failure to warrant claims, because the allegations in Shea were not simply that the mental health provider failed to warn the potential victim or failed to, as Mr. Cooper kept referencing, take some type of action to put someone on notice or drop a dime or breach HIPAA. But it was also an allegation that there was an allegation of failure to hospitalize. Specifically what Mr. Cooper was talking about when he said a breach of the standard of care is straightforward medical negligence. So this Shea decision explicitly states not only that failure to warrant claims are under Chapter 123, Section 36B, that case also involved an alleged failure to hospitalize the patient.
(52:38)
And what the Shea court concluded was that it was impossible to glean from such strong language contained in chapter 123, section 36B, the intention to permit additional liability based on common law. And it dismissed not only the failure to warrant claims, but also the failure to hospitalize him, the straightforward medical malpractice case. So it's not crazy and it's not an argument that I can't make with a straight face. I can absolutely make it with a straight face because that's exactly what the court said. And listen, I understand it is a well-plead complaint in the sense that it makes many allegations related to straightforward medical malpractice.
Judge (53:21):
Right. It has a lot of theories.
Tim Sweetland (53:23):
And breach of the standard of care. And it has a lot of theories and I understand that. And should this case proceed, the defendants will have defenses to those allegations and we'll hear all about the care that was provided about the daily contact with Mrs. Clancy and about everything that these defendants did to try to manage her prescriptions and help her the best possible way that they could. That hasn't come out yet, but it will if this case were to proceed. The problem for Mr. Cooper and for this case is that there is a statute that says the only way that a mental health provider can be held liable for these actions is under one of these two exceptions.
(54:03)
We've agreed that one doesn't apply because Mrs. Clancy did not have a history of violence. The only other exception is that there is evidence that she made an explicit threat to kill or harm her children. And what I did not hear, and I heard a lot about the different allegations and everything that the plaintiff will claim that the defendants did wrong in this case, what I did not hear is the factual basis for the information and belief that Mrs. Clancy told these defendants that she had an intention to harm or to kill her children. And the reason that you did not hear that is because in the hundreds and hundreds of pages of medical records that the plaintiff has access to, none of that is in there despite her being asked repeatedly over and over again.
Judge (54:54):
Okay. Thank you. Thank you all. I'll take it under advisement.
Howard Cooper (54:59):
You don't want to hear from me for another 10 minutes?
Judge (55:02):
[inaudible 00:55:02] Mr. Cooper.
Howard Cooper (55:02):
No, I'm joking, Your Honor.
Judge (55:04):
Oh, that's okay. All right. Take care.
Speaker 5 (55:09):
Thank you, Your Honor.
Judge (55:09):
Thank you.
Howard Cooper (55:09):
[inaudible 00:55:20].
Speaker 6 (55:09):
I'll be outside.
Howard Cooper (55:09):
Can I give you one of my binders [inaudible 00:55:28].
Speaker 6 (55:30):
If you want to get [inaudible 00:55:29] but I'll just meet you right outside.
Howard Cooper (55:32):
I hope it's not another 10 years before I see you.
Speaker 4 (55:34):
[inaudible 00:55:35].
Howard Cooper (55:37):
I knew Bill Delahunt when you looked like that.
Speaker 4 (55:39):
We did too.
Speaker X (55:39):
See you, Harry.
(55:39)
[Inaudible 00:56:00].
Speaker 4 (55:39):
Number six on our list. It's [inaudible 00:56:26] CD01044, Maria [inaudible 00:56:32] for the record, please.
Demetrius (55:39):
Good afternoon, Your Honor.
Judge (55:39):
Hi.
Demetrius (55:39):
Demetrius [inaudible 00:56:42] on behalf of the plaintiff.
Judge (55:39):
Hi Mr. [Inaudible 00:56:45]-