Opinion
19-P-684
04-21-2020
Ashley Y. (Yoo Hyang) KIM v. HUONG TRAN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Ashley Y. Kim, appeals from the judgment dismissing her amended complaint for failure to state a claim, pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and purports to appeal from the order denying her motion for reconsideration. We affirm.
The plaintiff's notice of appeal does not mention the order denying her motion for reconsideration. See Rothkopf v. Williams, 55 Mass. App. Ct. 294, 295 n.2 (2002) (notice of appeal failing to mention postjudgment motion does not bring order before appellate court).
Kim's amended complaint asserted three claims apparently arising from (i) her diagnosis for a mental disorder, which she contends resulted in the creation of medical records stating that she has chronic paranoid schizophrenia, and (ii) her treatment for illness she maintains relates to her exposure to unidentified toxins after she opened mail. After a Superior Court judge dismissed the amended complaint for failure to state a claim, Kim moved for reconsideration. The judge denied the motion for failure to comply with rule 9A of the Rules of the Superior Court (2018). We affirm.
Kim's original complaint also was dismissed for failure to state a claim; a Superior Court judge allowed Kim leave to amend the complaint, which she did.
Discussion. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief" (citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). A plaintiff must provide "factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief" (quotation and citation omitted). Id. at 636.
General Laws c. 231, § 60B, requires medical malpractice claims to be heard by a tribunal in order for the tribunal to make an initial determination whether the plaintiff's "evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry." The parties do not address the applicability of this provision to the present action.
Counts I and II present as medical malpractice claims in that they pertain to medical treatment by the defendants, Dr. Huong Tran and nurse practitioner Mary E. Smith. A medical malpractice plaintiff must "(1) show that the defendant is a provider of health care as defined in G. L. c. 231, § 60B ; (2) demonstrate that the health care provider did not conform to good medical practice; and (3) establish resulting damage." Saunders v. Ready, 68 Mass. App. Ct. 403, 404 (2007). The amended complaint fails to allege a cognizable injury from the negligence alleged. For count I, Kim alleged only that Tran's negligence (a purported failure to alert her that the consultation with Smith might lead to a diagnosis of schizophrenia ) resulted in "very obnoxious amounts of medical record pages" in her medical records. Similarly, count II alleged Tran's and Smith's negligence (purportedly the failure to disclose to her that Smith's evaluation would result in a diagnosis for schizophrenia ) resulted in "a lot of disgusting and unbelievable mess on [her] medical records, where there are tons of psychological wordings to describe [her] mental conditions." As such, Kim failed to set forth a cognizable injury.
Kim admitted at the hearing on the defendants' motion that she has no basis to challenge the diagnosis itself as incorrect; she has consulted neither another physician nor an expert.
At the hearing on the motion, Kim was asked to identify her claimed injury. She speculated that her medical records might affect her future employability. However, Kim admitted that she had not applied for (let alone been denied) employment; given this, she cannot claim that her medical records in any manner affected her employment. Furthermore, Kim does not allege that her private medical records were shared with anyone. To the contrary, she stated that she was not concerned about publication of her records, stating only, "[I]t's just that I don't like that chronic paranoid schizophrenia diagnosis; that the fact that I had to see somebody for my mental[ ] illness. I just don't want that in me." These allegations do not plausibly suggest Kim has suffered damages to sustain her claim. See Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 222 (2009) ("A negligence action may not be maintained unless one has suffered injury or damage" [citation omitted] ).
Count III alleged that Tran failed to provide the tests and "particular medications" and an "urgent medical needle shot" Kim believed were required to get rid of her symptoms from her exposure to toxins in the mail. Kim's speculation that these unspecified treatments were required is insufficient to plausibly suggest that Tran did not conform to the standard of care. The judge properly dismissed Kim's amended complaint.
We note that the motion for reconsideration was properly denied. See Arthur D. Little, Inc. v. East Cambridge Sav. Bank, 35 Mass. App. Ct. 734, 742-743 (1994) (proper denial of motion to alter or amend judgment for failure to comply with rule 9A of the Rules of the Superior Court).
To the extent the amended complaint raises a claim of fraud, it does not meet the particularity requirement of Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974). On appeal, Kim contends that she has stated claims for lack of consortium, libel, slander, and infliction of emotional distress. None are supported by the allegations in the complaint; moreover, having been raised for the first time on appeal, we need not consider them. See Picciotto v. Chief Justice of the Superior Court, 446 Mass. 1015, 1016 n.2 (2006). To the extent that any arguments are not expressly addressed, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.