Jason Ranieri v. Shattuck Hospital.

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

22-P-1220

JASON RANIERI

vs.

SHATTUCK HOSPITAL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Jason Ranieri, appeals from a Superior Court

judgment dismissing his complaint against Shattuck Hospital

under the Massachusetts Tort Claims Act (MTCA), G. L. c. 258.

The hospital is operated by the State Department of Public

Health (DPH) and includes units operated by the Department of

Mental Health (DMH). The hospital moved for summary judgment on

the ground that Ranieri had failed to make presentment of his

claim to the proper official within two years of the claim's

accrual, as required by G. L. c. 258, § 4. A judge allowed the

motion. We affirm, but we leave open the possibility that

Ranieri may still be entitled to relief.

Background. The summary judgment record establishes as

undisputed fact that Ranieri, a client of the hospital, filed an

administrative complaint asserting that, on January 25, 2019, he
was subjected to excessive physical and chemical restraints.

After an internal investigation, the hospital's chief operating

officer issued a decision in March 2019 substantiating the

complaint and recommending that certain staff members receive

retraining on restraint guidelines.

Based on the January 2019 incident, Ranieri commenced this

action in February 2020. The hospital's answer, filed on

November 24, 2020, asserted as a defense that Ranieri had failed

to make proper presentment of his claim. At that time, the

MTCA's two-year presentment period, which ran from January 25,

2019, had not yet expired; Ranieri still had two months in which

to cure any failure to make proper presentment. As far as the

record shows, however, Ranieri took no further action by January

25, 2021.

In October of 2021, the hospital moved for summary judgment

on the basis of improper presentment, and Ranieri filed an

opposition supported by three unsigned affidavits. The summary

judgment record establishes as undisputed fact that at no time

during the two-year presentment period did Ranieri present any

claim based on the January 2019 incident to the executive

officers of DPH or DMH or to the Attorney General. The summary

judgment record did not, however, address whether Ranieri had

presented his claim to the Secretary of the Executive Office of

Health and Human Services (EOHHS).

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The judge's written decision on the motion recognized that

because the hospital and DMH were within EOHHS, "presentment of

claims under the MTCA arising out of the negligence of employees

of the [h]ospital must be made to the Secretary of [EOHHS]."1

The judge's analysis, however, did not address whether Ranieri

had made presentment to the Secretary. The judge focused

instead on whether Ranieri had shown that either of two

exceptions to the presentment requirement applied -- the

"lulling" and "actual notice" exceptions described in Bellanti

v. Boston Pub. Health Comm'n, 70 Mass. App. Ct. 401, 406-409

(2007). Concluding that neither exception applied, the judge

allowed the hospital's motion. Ranieri appealed from the

resulting judgment of dismissal.

Discussion. The MTCA provides in pertinent part that "[a]

civil action shall not be instituted against a public employer

on a claim for damages under this chapter unless the claimant

shall have first presented his claim in writing to the executive

officer of such public employer within two years after the date

upon which the cause of action arose." G. L. c. 258, § 4. The

term "[e]xecutive officer of a public employer" is defined in

pertinent part as "the secretary of an executive office of the

commonwealth." G. L. c. 258, § 1. The executive offices of the

1 DPH is also within EOHHS. See G. L. c. 6A, § 16.

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Commonwealth are established by G. L. c. 6A, § 2, and at all

relevant times have included EOHHS.2 As noted supra, both DMH

and DPH are within EOHHS. See G. L. c. 6A, § 16.

Presentment of a claim against a hospital within DMH or DPH

is not sufficient if made to the hospital's administrator, or

even to the commissioner of DMH or DPH; rather, presentment must

be made to the Secretary of EOHHS. See Weaver v. Commonwealth,

387 Mass. 43, 45-47 (1982). See also Estate of Gavin v.

Tewksbury State Hosp., 468 Mass. 123, 128 (2014) (under MTCA,

Secretary of EOHHS was "'executive officer' in charge of the

executive office ultimately responsible for the hospital").3 "An

oft-recited proposition is that presentment must be made 'in

strict compliance with the statute.'" Martin v. Commonwealth,

2 Under current law, "There shall be the following executive
offices, each of which shall serve under the governor:
administration and finance, education, energy and environmental
affairs, health and human services, economic development,
housing and livable communities, labor and workforce
development, public safety and security, technology services and
security, transportation and public works and veterans'
services." G. L. c. 6A, § 2.

3 The MTCA provides that presentment of a claim against a State
entity -- such as the hospital, DMH, DPH, or EOHHS itself -- is
also sufficient if made to the Attorney General. See G. L.
c. 258, § 4, second par. See also Estate of Gavin, 468 Mass. at
128 (presentment proper where "directed to the proper executive
official, namely, the Attorney General on behalf of the
Secretary" of EOHHS). Because it is undisputed here that no
presentment to the Attorney General was made within the two-year
period, we focus on presentment to the Secretary.

4
53 Mass. App. Ct. 526, 528 (2002), quoting Weaver, 387 Mass. at

47.

"The standard of review of a grant of summary judgment is

whether, viewing the evidence in the light most favorable to the

nonmoving party, all material facts have been established and

the moving party is entitled to a judgment as a matter of law."

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

Here, the hospital attempted to meet this standard by showing

that Ranieri had no reasonable expectation of proving

presentment, an essential element of his case. See

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). See also Vasys v. Metropolitan Dist. Comm'n, 387 Mass.

51, 55 (1982) (presentment is "statutory condition precedent to

recovery under G.L. c. 258"). But the hospital failed to

establish that Ranieri had no reasonable expectation of proving

presentment had been made to the Secretary.

Thus, the hospital's summary judgment motion should not

have been granted.4 Indeed, it should not have been made in the

4 We note, however, that we see no error in the judge's
conclusion that, on this record, neither the lulling nor actual
notice exceptions to the presentment requirement applied. As
for lulling, there was no evidence that any State official or
employee with authority over the hospital "affirmatively
indicate[d] that the presentment requirement ha[d] been met or
is waived." Garcia v. Essex County Sheriff's Dep't, 65 Mass.
App. Ct. 104, 111 (2005). As for actual notice, there was no
evidence that "despite defective presentment, the designated
executive officer," here the Secretary of EOHHS, "had actual

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form it was. The Office of the Attorney General (OAG)'s brief

in this appeal repeatedly recognizes that what was required here

was presentment to the Secretary of EOHHS, and then it

erroneously asserts -- citing only evidence of lack of

presentment to DPH, DMH, or the Attorney General -- that no

presentment to the Secretary was made.

Nevertheless, Ranieri did not argue this point either to

the judge or in his brief on appeal. The argument is thus

waived. Moreover, Ranieri has never asserted as a factual

matter that he made presentment to the Secretary. If he had

done so, it seems highly likely that he would have said so in

response to the hospital's summary judgment motion.

Accordingly, we will affirm the judgment of dismissal. If,

however, within thirty days of the entry of judgment after

rescript in Superior Court, Ranieri files a motion in that court

for relief from judgment under Mass. R. Civ. P. 60 (b), 365

Mass. 828 (1974), together with a signed affidavit demonstrating

that he did make timely presentment to the Secretary, we are

confident that the OAG on behalf of the hospital will respond

notice of the written claim." Bellanti, 70 Mass. App. Ct. at
407.

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appropriately and that the judge will give the motion every

consideration.

Judgment affirmed.

By the Court (Milkey, Blake &
Sacks, JJ.5),

Clerk

Entered: October 12, 2023.

5 The panelists are listed in order of seniority.

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