Court: Family of elder-care resident may use rare 'bill for discovery' to investigate how broken foot occurred

In an unusual case last week, the Massachusetts Appeals Court allowed a "bill for discovery" to proceed despite its arguable incompatibility with rules of civil procedure.

Mary T. Atchue, an elderly resident in an assisted living facility in Worcester, Massachusetts, sustained a broken foot while being moved.  In an action maintained by her family since her death, Atchue filed a "complaint for discovery," based in equity.

Marie Van den Broeck, BE (CC BY 3.0)

The court held that the complaint could proceed, despite objection from defendant Benchmark Senior Living, LLC, that the claim would not be allowed by the state rule of civil procedure for pre-litigation discovery.  Discovery processes specified by statute and rule supersede the historic bill for discovery in equity insofar as they pertain, the court reasoned, but the bill remains available to supplement modern practice where it does not pertain.

The viability of a bill for discovery is dependent on the viability of the underlying potential claim in litigation, the court further held.  Atchue has a viable theory on tolling the statute of limitations, and her claims survive her death under the state survival statute.  So a bill for discovery remains available.

I don't usually dig into civil procedure cases, but this one caught my eye because of the unusual disposition in pre-litigation discovery.  I've written with approval about the use of the access to information law, or freedom of information act, in South Africa having been used as a pre-litigation discovery device, specifically, in fact, for a potential plaintiff to investigate the possibility of negligence in healthcare services.

Shaped by the experience of apartheid, the South African law, and comparable laws elsewhere in Africa modeled on it, allow access to information in the private sector when the complainant can demonstrate sufficient need grounded in civil rights.

The court vacated dismissal and remanded.

The case is Atchue v. Benchmark Senior Living LLC, No. 19-P-125 (Mass. App. Ct. Oct. 5, 2020).  Justice Vickie L. Henry wrote the opinion for a panel that also comprised Justices Rubin and Wolohojian.