NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-737
GREGORY TORRESO
vs.
JAMES CHODOSH & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Gregory Torreso, appeals from a Superior
Court judge's order denying his motion for reconsideration of a
medical malpractice tribunal's decision in favor of the
defendants, Dr. James Chodosh and Massachusetts Eye & Ear
Infirmary (MEEI). We conclude that the judge acted within her
discretion in denying the motion for reconsideration, and that
the plaintiff did not timely appeal from the judgment of
dismissal, and thus affirm.
Background. The plaintiff commenced the underlying medical
malpractice action on December 7, 2020. He alleged that Dr.
Chodosh performed eye surgery on him, failed to refer him to
1 Massachusetts Eye & Ear Infirmary. another specialist for continuing care, and that he now suffers
from blindness and disfigurement because of Dr. Chodosh's
negligence.
At the medical tribunal, see G. L. c. 231, § 60B, the
plaintiff submitted medical records, letters from physicians
recommending new treatments, and a brochure regarding the eye
surgery team, but did not submit evidence from an expert witness
identifying a standard of care or a breach of the standard of
care. The medical tribunal determined that there was
insufficient evidence to raise a legitimate question as to
liability appropriate for judicial inquiry. Accordingly, to
proceed with the action against the defendants, the plaintiff
was required to either post a bond with the court within thirty
days or seek reduction of the bond requirement. See G. L.
c. 231, § 60B.
On November 22, 2021, the plaintiff filed a motion for
reconsideration in the Superior Court, which the judge denied.
Two days later, the defendants filed a motion to dismiss for
failure to post a bond. On December 2, 2021, the judge allowed
the motion to dismiss, and a judgment of dismissal "for failure
to file [a] bond" entered on December 10, 2021. On January 6,
2022, the plaintiff filed a notice of appeal in the Superior
Court. The appeal was dismissed for lack of prosecution on May
16, 2023.
2 On April 25, 2024, approximately two and one-half years
after the medical tribunal's decision and the judgment of
dismissal, the plaintiff filed a second motion for
reconsideration in the Superior Court. The judge considered the
motion for reconsideration as "essentially a motion seeking
relief from judgment" and denied the motion because "this motion
comes more than [one] year later, and the [p]laintiff's motion
does not allege any fraud upon the court." On May 29, 2024, the
plaintiff filed a second notice of appeal in the Superior Court
seeking to challenge both the medical tribunal's findings and
the judge's denial of the second motion for reconsideration.
Discussion. 1. Rule 60 (b) motion.2 On appeal, the
plaintiff claims that (1) defense counsel committed fraud on the
court by withholding his medical records; (2) the medical
tribunal did not have possession of his offers of proof and thus
2 Our review is hampered by the plaintiff's failure to comply with the Massachusetts Rules of Appellate Procedure, as several arguments in his brief lack citation to relevant legal authority, or any legal authority whatsoever. An appellant's brief must contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities and parts of the record on which the appellant relies." Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). The rule "is more than a 'mere technicality. It is founded on the sound principle that the right of a party to have this court consider a point entails a duty; that duty is to assist the court with argument and appropriate citation of authority.'" Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995), quoting Lolos v. Berlin, 338 Mass. 10, 14 (1958).
3 could not have properly weighed them; (3) a prolonged hospital
stay is excusable neglect justifying his delay; and (4) the
medical tribunal determination was invalid because the physician
who participated on the medical tribunal "never completed an
ophthalmic residency or corneal fellowship" and was otherwise
not qualified in the field of medicine in which the injury
occurred. The claims are unavailing.
As a preliminary matter, our review is limited to the
judge's denial of the plaintiff's second motion for
reconsideration because the plaintiff failed to timely appeal
from the judgment within the thirty-day period specified in
Mass. R. A. P. 4, as appearing in 481 Mass. 1606 (2019). See
Muir v. Hall, 37 Mass. App. Ct. 38, 40 (1994). Because a motion
for reconsideration under Mass. R. Civ. P. 59 (e), 365 Mass. 827
(1974), also required service within ten days, the judge treated
the plaintiff's motion as one for relief from judgment pursuant
to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), which does not
constitute an appeal from the original judgment. See Wilkinson
v. Guarino, 19 Mass. App. Ct. 1021, 1023 n.6 (1985) ("a rule
60 [b] motion does not bring with it an appeal from the original
judgment of dismissal").
We review the denial of a rule 60 (b) motion for an abuse
of discretion. See Cullen Enters., Inc. v. Massachusetts Prop.
Ins. Underwriting Ass'n, 399 Mass. 886, 894 (1987). In denying
4 a motion for relief from judgment, the judge must "balanc[e] the
competing needs for finality and flexibility to be certain that
justice is done in light of all the facts." Sahin v. Sahin, 435
Mass. 396, 400 (2001). Nonetheless, a claim under rule
60 (b) (1)-(3) must be brought within one year of judgment. See
Mass R. Civ. P. 60 (b), 365 Mass. 828 (1974). Because the
plaintiff did not file his motion for reconsideration until
approximately two and one-half years after final judgment
entered, the judge did not have the power to grant the requested
relief under those subsections.3 Chavoor v. Lewis, 383 Mass.
801, 803-804 (1981). "This one-year time limit cannot be
extended," thus, we discern no abuse of discretion. Id. at 803.
2. Negligence claims. Even if the dismissal and the
motion for relief from judgment were properly before this court,
see Mass R. Civ. P. 60 (b) (6), the plaintiff's contentions
still fail. The plaintiff argues that he established a standard
of care and a triable issue without expert testimony. In
medical malpractice cases, "[e]stablishing the applicable
standard of care typically requires expert testimony."
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-737
GREGORY TORRESO
vs.
JAMES CHODOSH & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Gregory Torreso, appeals from a Superior
Court judge's order denying his motion for reconsideration of a
medical malpractice tribunal's decision in favor of the
defendants, Dr. James Chodosh and Massachusetts Eye & Ear
Infirmary (MEEI). We conclude that the judge acted within her
discretion in denying the motion for reconsideration, and that
the plaintiff did not timely appeal from the judgment of
dismissal, and thus affirm.
Background. The plaintiff commenced the underlying medical
malpractice action on December 7, 2020. He alleged that Dr.
Chodosh performed eye surgery on him, failed to refer him to
1 Massachusetts Eye & Ear Infirmary. another specialist for continuing care, and that he now suffers
from blindness and disfigurement because of Dr. Chodosh's
negligence.
At the medical tribunal, see G. L. c. 231, § 60B, the
plaintiff submitted medical records, letters from physicians
recommending new treatments, and a brochure regarding the eye
surgery team, but did not submit evidence from an expert witness
identifying a standard of care or a breach of the standard of
care. The medical tribunal determined that there was
insufficient evidence to raise a legitimate question as to
liability appropriate for judicial inquiry. Accordingly, to
proceed with the action against the defendants, the plaintiff
was required to either post a bond with the court within thirty
days or seek reduction of the bond requirement. See G. L.
c. 231, § 60B.
On November 22, 2021, the plaintiff filed a motion for
reconsideration in the Superior Court, which the judge denied.
Two days later, the defendants filed a motion to dismiss for
failure to post a bond. On December 2, 2021, the judge allowed
the motion to dismiss, and a judgment of dismissal "for failure
to file [a] bond" entered on December 10, 2021. On January 6,
2022, the plaintiff filed a notice of appeal in the Superior
Court. The appeal was dismissed for lack of prosecution on May
16, 2023.
2 On April 25, 2024, approximately two and one-half years
after the medical tribunal's decision and the judgment of
dismissal, the plaintiff filed a second motion for
reconsideration in the Superior Court. The judge considered the
motion for reconsideration as "essentially a motion seeking
relief from judgment" and denied the motion because "this motion
comes more than [one] year later, and the [p]laintiff's motion
does not allege any fraud upon the court." On May 29, 2024, the
plaintiff filed a second notice of appeal in the Superior Court
seeking to challenge both the medical tribunal's findings and
the judge's denial of the second motion for reconsideration.
Discussion. 1. Rule 60 (b) motion.2 On appeal, the
plaintiff claims that (1) defense counsel committed fraud on the
court by withholding his medical records; (2) the medical
tribunal did not have possession of his offers of proof and thus
2 Our review is hampered by the plaintiff's failure to comply with the Massachusetts Rules of Appellate Procedure, as several arguments in his brief lack citation to relevant legal authority, or any legal authority whatsoever. An appellant's brief must contain "the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities and parts of the record on which the appellant relies." Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). The rule "is more than a 'mere technicality. It is founded on the sound principle that the right of a party to have this court consider a point entails a duty; that duty is to assist the court with argument and appropriate citation of authority.'" Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995), quoting Lolos v. Berlin, 338 Mass. 10, 14 (1958).
3 could not have properly weighed them; (3) a prolonged hospital
stay is excusable neglect justifying his delay; and (4) the
medical tribunal determination was invalid because the physician
who participated on the medical tribunal "never completed an
ophthalmic residency or corneal fellowship" and was otherwise
not qualified in the field of medicine in which the injury
occurred. The claims are unavailing.
As a preliminary matter, our review is limited to the
judge's denial of the plaintiff's second motion for
reconsideration because the plaintiff failed to timely appeal
from the judgment within the thirty-day period specified in
Mass. R. A. P. 4, as appearing in 481 Mass. 1606 (2019). See
Muir v. Hall, 37 Mass. App. Ct. 38, 40 (1994). Because a motion
for reconsideration under Mass. R. Civ. P. 59 (e), 365 Mass. 827
(1974), also required service within ten days, the judge treated
the plaintiff's motion as one for relief from judgment pursuant
to Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), which does not
constitute an appeal from the original judgment. See Wilkinson
v. Guarino, 19 Mass. App. Ct. 1021, 1023 n.6 (1985) ("a rule
60 [b] motion does not bring with it an appeal from the original
judgment of dismissal").
We review the denial of a rule 60 (b) motion for an abuse
of discretion. See Cullen Enters., Inc. v. Massachusetts Prop.
Ins. Underwriting Ass'n, 399 Mass. 886, 894 (1987). In denying
4 a motion for relief from judgment, the judge must "balanc[e] the
competing needs for finality and flexibility to be certain that
justice is done in light of all the facts." Sahin v. Sahin, 435
Mass. 396, 400 (2001). Nonetheless, a claim under rule
60 (b) (1)-(3) must be brought within one year of judgment. See
Mass R. Civ. P. 60 (b), 365 Mass. 828 (1974). Because the
plaintiff did not file his motion for reconsideration until
approximately two and one-half years after final judgment
entered, the judge did not have the power to grant the requested
relief under those subsections.3 Chavoor v. Lewis, 383 Mass.
801, 803-804 (1981). "This one-year time limit cannot be
extended," thus, we discern no abuse of discretion. Id. at 803.
2. Negligence claims. Even if the dismissal and the
motion for relief from judgment were properly before this court,
see Mass R. Civ. P. 60 (b) (6), the plaintiff's contentions
still fail. The plaintiff argues that he established a standard
of care and a triable issue without expert testimony. In
medical malpractice cases, "[e]stablishing the applicable
standard of care typically requires expert testimony."
3 Even if the plaintiff's rule 60 (b) motion had been brought within one year, there is nothing in the record before us that supports his position that neither he nor the tribunal had access to his medical records. To the contrary, the record reveals that the plaintiff filed his medical records as part of his offers of proof to the medical tribunal and the medical tribunal confirmed that they had access to those records.
5 Palandjian v. Foster, 446 Mass. 100, 105-106 (2006).4 "It is
only in exceptional cases that a jury . . . may without the aid
of expert medical opinion determine whether the conduct of a
physician toward a patient is violative of the special duty
which the law imposes." Bouffard v. Canby, 292 Mass. 305, 309
(1935). Such exceptional cases are limited to those "where the
negligence and harmful results are sufficiently obvious to lie
within common knowledge" (citation omitted). Haggerty v.
McCarthy, 344 Mass. 136, 139 (1962).
The plaintiff claims that a jury could infer negligence
from evidence showing that he did not receive team-based care as
advertised, and that Dr. Lucy Shen changed his care plan. These
claims are insufficient to establish a breach of the duty of
care. As the plaintiff concedes, "Only a high-level . . .
corneal surgeon would understand the complexity of this surgical
procedure." Thus, the applicable standard of care in the
present case is not within the common knowledge of a layperson.
Moreover, advertisements of team-based medical care do not
establish a duty of care. See Haggerty, 344 Mass. at 141
(expert testimony required to determine risks and requirements
of professional conduct). Furthermore, Dr. Shen's alleged
4 A physician is held to the standard of care and skill of the average member of the medical profession practicing his specialty at the time of the alleged negligence. Brusard v. O'Toole, 429 Mass. 597, 607 (1999).
6 choice to change the plaintiff's care plan does not demonstrate
a breach of duty because her choice could be based on any number
of factors including those unrelated to the surgery. See
Keppler v. Tufts, 38 Mass. App. Ct. 587, 592 (1995) (plaintiff
must show "beyond pure conjecture or speculation" doctor's care
was not within recognized standard of care). Accordingly, we
discern no abuse of discretion in the denial of the plaintiff's
motion for reconsideration.5
Order dated April 30, 2024, denying motion for reconsideration, affirmed.
By the Court (Neyman, Ditkoff & Englander, JJ.6),
Clerk Entered: October 24, 2025.
5 The plaintiff's negligence claim against MEEI was based in a "respondeat superior" theory. Elias v. Unisys Corp., 410 Mass. 479, 481 (1991). The plaintiff has not offered sufficient proof to show that Dr. Chodosh was negligent, therefore, the plaintiff's claim fails against MEEI as well. See id. ("the principles of vicarious liability apply where only the agent has committed a wrongful act").
6 The panelists are listed in order of seniority.