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
23-P-1181
HANNAH M. RAIMON
vs.
MICHAEL D. AZZONI & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a corrected judgment that
entered on October 21, 2022, following a jury trial in the
Superior Court. On appeal, the plaintiff argues that the trial
judge erred by (1) allowing the motion of Henry Heywood Memorial
Hospital, Inc. (hospital), for judgment notwithstanding the
verdict; (2) allowing the motion of Heywood Medical Group, Inc.,
and Heywood Healthcare, Inc. (collectively, Heywood defendants),
for directed verdicts; (3) applying a statutory cap on damages
against charitable organizations to the award against the
1Heywood Medical Group, Inc.; Heywood Healthcare, Inc.; and Henry Heywood Memorial Hospital. hospital; and (4) denying the plaintiff's motion to compel
production of a witness at a deposition. We affirm.
Background. The plaintiff filed a medical malpractice
action that arose from a wrist surgery performed by defendant
Dr. Azzoni (physician) on the plaintiff at the hospital, which
is owned and operated by the Heywood defendants.
On January 31, 2015, the plaintiff sustained injuries,
including a fractured wrist, in a motor vehicle crash.
Following the crash, the plaintiff was transported by ambulance
to the hospital, where the physician consulted on her case and
recommended emergency surgery on the plaintiff's wrist. The
plaintiff agreed to have the surgery, which the physician
performed that same day. The physician installed an external
fixator during the surgery that was to be removed later. During
the initial consultation and surgery, the physician was an
independent contractor for the hospital.
On March 11, 2015, the physician removed the external
fixator and replaced it with a cast. On April 1, 2015, the
physician removed the cast and referred the plaintiff to
occupational therapy. The physician was unable to determine if
the plaintiff had regained major function in her wrist. The
plaintiff also expressed concerns to the physician that she was
in pain and that her wrist appeared deformed. The plaintiff
testified that the physician dismissed her concerns. On the day
2 of the April 1, 2015 appointment, the physician assumed a new
role within the hospital and became a hospital employee.
After her final appointment with the physician, the
plaintiff's pain persisted, and her wrist function deteriorated.
Consequently, she sued the physician for medical malpractice,
joining the hospital and the Heywood defendants as vicariously
liable parties.
At the close of the plaintiff's case-in-chief, the trial
judge granted the Heywood defendants' motion for directed
verdicts, allowing only the claims against the physician and the
hospital to go to the jury. The jury awarded the plaintiff
$2.87 million, for which the physician and the hospital were
jointly and severally liable. The hospital moved for judgment
notwithstanding the verdict, arguing that the plaintiff failed
to establish that the physician was acting as an agent of the
hospital with apparent authority. The trial judge granted the
hospital's motion for judgment notwithstanding the verdict and
issued a second corrected judgment, awarding the plaintiff $2.87
million (plus $1,962.38 for costs and $665,728.42 in prejudgment
interest) against the physician.
Discussion. The plaintiff argues that the trial judge
erred in allowing the hospital's motion for judgment
notwithstanding the verdict because it was vicariously liable
3 for the physician's actions under a theory of apparent
authority. We are not persuaded.
When considering a motion for judgment notwithstanding the
verdict, a judge must evaluate the evidence in the light most
favorable to the plaintiff, "to determine whether, without
weighing the credibility of the witnesses or otherwise
considering the weight of the evidence, the jury reasonably
could return a verdict for the plaintiff" (citation omitted).
Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004). "The
judge will consider whether anywhere in the evidence, from
whatever source derived, any combination of circumstances could
be found from which a reasonable inference could be drawn in
favor of the nonmoving party" (quotation and citation omitted).
Id. "To be reasonable, the inference must be based on
probabilities rather than possibilities and cannot be the result
of mere speculation and conjecture" (quotation and citation
omitted). Id. "When reviewing a judgment n.o.v., this court
applies the same standard as the motion judge." Id. See Kattar
v. Demoulas, 433 Mass. 1, 8 n.5 (2000).
To hold a principal liable for the actions of its agent
under a theory of apparent authority, a plaintiff must show that
"the principal, by [its] words or conduct, causes a third person
to reasonably believe that the principal consents to the agent
acting on the principal's behalf." Fergus v. Ross, 477 Mass.
4 563, 567 (2017). "Critically, '[o]nly the words and conduct of
the principal, . . . and not those of the agent, are considered
in determining the existence of apparent authority.'" Id.,
quoting Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 801
(2014).
Here, the plaintiff argues that the jury could have found
apparent authority based on evidence that physicians who are
independent contractors at the hospital must use the hospital's
facilities, follow the hospital's rules and regulations, and use
forms that bear the hospital's letterhead. Only the hospital's
forms contain communications from the hospital to the plaintiff
that could establish apparent authority. The plaintiff,
however, did not testify that the presence of the hospital's
letterhead on the consent forms made her reasonably believe that
the physician was acting as the hospital's agent, and she points
to no evidence that the hospital directed the physician to use
its forms. The forms themselves do not designate the physician
as an agent of the hospital. Because the plaintiff never
identified at trial a communication from the hospital that would
imbue the physician with apparent authority, no jury could
reasonably return a verdict for the plaintiff. See Fergus, 477
Mass. at 567; Phelan, 443 Mass. at 55. Therefore, the trial
judge did not err in granting the hospital's motion for judgment
notwithstanding the verdict.
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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
23-P-1181
HANNAH M. RAIMON
vs.
MICHAEL D. AZZONI & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a corrected judgment that
entered on October 21, 2022, following a jury trial in the
Superior Court. On appeal, the plaintiff argues that the trial
judge erred by (1) allowing the motion of Henry Heywood Memorial
Hospital, Inc. (hospital), for judgment notwithstanding the
verdict; (2) allowing the motion of Heywood Medical Group, Inc.,
and Heywood Healthcare, Inc. (collectively, Heywood defendants),
for directed verdicts; (3) applying a statutory cap on damages
against charitable organizations to the award against the
1Heywood Medical Group, Inc.; Heywood Healthcare, Inc.; and Henry Heywood Memorial Hospital. hospital; and (4) denying the plaintiff's motion to compel
production of a witness at a deposition. We affirm.
Background. The plaintiff filed a medical malpractice
action that arose from a wrist surgery performed by defendant
Dr. Azzoni (physician) on the plaintiff at the hospital, which
is owned and operated by the Heywood defendants.
On January 31, 2015, the plaintiff sustained injuries,
including a fractured wrist, in a motor vehicle crash.
Following the crash, the plaintiff was transported by ambulance
to the hospital, where the physician consulted on her case and
recommended emergency surgery on the plaintiff's wrist. The
plaintiff agreed to have the surgery, which the physician
performed that same day. The physician installed an external
fixator during the surgery that was to be removed later. During
the initial consultation and surgery, the physician was an
independent contractor for the hospital.
On March 11, 2015, the physician removed the external
fixator and replaced it with a cast. On April 1, 2015, the
physician removed the cast and referred the plaintiff to
occupational therapy. The physician was unable to determine if
the plaintiff had regained major function in her wrist. The
plaintiff also expressed concerns to the physician that she was
in pain and that her wrist appeared deformed. The plaintiff
testified that the physician dismissed her concerns. On the day
2 of the April 1, 2015 appointment, the physician assumed a new
role within the hospital and became a hospital employee.
After her final appointment with the physician, the
plaintiff's pain persisted, and her wrist function deteriorated.
Consequently, she sued the physician for medical malpractice,
joining the hospital and the Heywood defendants as vicariously
liable parties.
At the close of the plaintiff's case-in-chief, the trial
judge granted the Heywood defendants' motion for directed
verdicts, allowing only the claims against the physician and the
hospital to go to the jury. The jury awarded the plaintiff
$2.87 million, for which the physician and the hospital were
jointly and severally liable. The hospital moved for judgment
notwithstanding the verdict, arguing that the plaintiff failed
to establish that the physician was acting as an agent of the
hospital with apparent authority. The trial judge granted the
hospital's motion for judgment notwithstanding the verdict and
issued a second corrected judgment, awarding the plaintiff $2.87
million (plus $1,962.38 for costs and $665,728.42 in prejudgment
interest) against the physician.
Discussion. The plaintiff argues that the trial judge
erred in allowing the hospital's motion for judgment
notwithstanding the verdict because it was vicariously liable
3 for the physician's actions under a theory of apparent
authority. We are not persuaded.
When considering a motion for judgment notwithstanding the
verdict, a judge must evaluate the evidence in the light most
favorable to the plaintiff, "to determine whether, without
weighing the credibility of the witnesses or otherwise
considering the weight of the evidence, the jury reasonably
could return a verdict for the plaintiff" (citation omitted).
Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004). "The
judge will consider whether anywhere in the evidence, from
whatever source derived, any combination of circumstances could
be found from which a reasonable inference could be drawn in
favor of the nonmoving party" (quotation and citation omitted).
Id. "To be reasonable, the inference must be based on
probabilities rather than possibilities and cannot be the result
of mere speculation and conjecture" (quotation and citation
omitted). Id. "When reviewing a judgment n.o.v., this court
applies the same standard as the motion judge." Id. See Kattar
v. Demoulas, 433 Mass. 1, 8 n.5 (2000).
To hold a principal liable for the actions of its agent
under a theory of apparent authority, a plaintiff must show that
"the principal, by [its] words or conduct, causes a third person
to reasonably believe that the principal consents to the agent
acting on the principal's behalf." Fergus v. Ross, 477 Mass.
4 563, 567 (2017). "Critically, '[o]nly the words and conduct of
the principal, . . . and not those of the agent, are considered
in determining the existence of apparent authority.'" Id.,
quoting Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 801
(2014).
Here, the plaintiff argues that the jury could have found
apparent authority based on evidence that physicians who are
independent contractors at the hospital must use the hospital's
facilities, follow the hospital's rules and regulations, and use
forms that bear the hospital's letterhead. Only the hospital's
forms contain communications from the hospital to the plaintiff
that could establish apparent authority. The plaintiff,
however, did not testify that the presence of the hospital's
letterhead on the consent forms made her reasonably believe that
the physician was acting as the hospital's agent, and she points
to no evidence that the hospital directed the physician to use
its forms. The forms themselves do not designate the physician
as an agent of the hospital. Because the plaintiff never
identified at trial a communication from the hospital that would
imbue the physician with apparent authority, no jury could
reasonably return a verdict for the plaintiff. See Fergus, 477
Mass. at 567; Phelan, 443 Mass. at 55. Therefore, the trial
judge did not err in granting the hospital's motion for judgment
notwithstanding the verdict.
5 The plaintiff also argues that the trial judge erred in
granting the motion for directed verdicts in favor of the
Heywood defendants because the physician became a direct
employee of the Heywood Medical Group, Inc., on April 1 -- the
day of the plaintiff's final follow-up appointment with the
physician. Putting aside that the plaintiff raises no argument
as to the motion brought by Heywood Healthcare, Inc., we
disagree that the jury could have found that the physician was
acting as an employee of the Heywood defendants during the April
1 appointment. It is undisputed that the physician charged the
plaintiff directly for the April 1 appointment instead of using
the hospital's global billing system. If the physician was
acting as an employee, this direct charge would have been
prohibited by the physician's employment agreement, which barred
him from billing "any patient or third party payor any amount
for services rendered pursuant to [the employment agreement]."
To the extent the plaintiff argues that the physician was acting
with apparent authority from the Heywood defendants, nothing in
the record demonstrates that either Heywood defendant
communicated with the plaintiff. See Fergus, 477 Mass. at 567,
quoting Licata, 466 Mass. at 801 (apparent authority established
only via "words and conduct of the principal"). Thus, the judge
properly granted the motion for directed verdicts in favor of
these defendants.
6 The plaintiff also contends that the judge erred in
applying a statutory cap on damages against charitable
organizations, G. L. c. 231 § 85K, to the award against the
hospital. We need not address the application of the statutory
cap because we conclude that the judge properly granted the
motion for judgment notwithstanding the verdict.
The plaintiff also argues that the judge erred in denying a
motion to further depose the Heywood defendants' designee under
Mass. R. Civ. P. 30 (b) (6), as appearing in 489 Mass. 1401
(2022). We do not agree. We conclude that the judge did not
abuse his discretion by denying the plaintiff's motion for
further deposition where the deponent sat for over six hours of
questioning, and the plaintiff's counsel was unable to identify
a single question not adequately answered by the witness. See
Symmons v. O'Keeffe, 419 Mass. 288, 302 (1995) (denial of motion
to compel further deposition reviewed for abuse of discretion).
The plaintiff also contends that several of the judge's
"discretionary" rulings deprived her of a fair trial but fails
to provide any supporting authority for these claims. 2 We need
not discuss those challenges because they are waived. See Mass.
R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
2 The plaintiff argues that the judge's refusal to allow trial counsel to wear a flag lapel pin, his decision to reduce the Heywood defendants' costs, and his prohibiting the use of the safety rules argument deprived her of a fair trial.
7 Likewise, we need not discuss the plaintiff's challenge to the
medical tribunal's finding, which the plaintiff concedes is
moot.
Corrected judgment entered October 21, 2022, affirmed.
By the Court (Meade, Shin & Tan, JJ. 3),
Clerk
Entered: August 18, 2025.
3 The panelists are listed in order of seniority.