HANNAH M. RAIMON v. MICHAEL D. AZZONI & Others.

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

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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

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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.

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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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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.

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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.

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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.

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