An Elder Fights the Denial of Medicaid by Division of Medical Assistance and the Hearing Officer Who Needs the Immunity Defense Provided by the Massachusetts Tort Claims Act

• An Elder Fights the Denial of Medicaid by Division of Medical Assistance and the Hearing Officer Who Needs the Immunity Defense Provided by the Massachusetts Tort Claims Act

  STANDARD OF REVIEW When determining a motion to dismiss a complaint for failure to state a claim, allegations of the complaint, as well as any reasonable inferences [and annexed exhibits] which may be drawn therefrom in plaintiff's favor, are to be taken as true. Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 321 (1998). Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991) and cases cited. See also Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 87 (1979); Nader v. Citron, 372 Mass. 96, 98 (1977). Dismissal is also not appropriate where GiGi is entitled to any form of relief for any wrong or injury. Brum, at 321. Citron v. Nader, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Mass.R.Civ.P. 8(f). Massachusetts Declaration of Rights, article XI. "A complaint is not subject to dismissal if it could support relief on any theory of law" [Whitinsville Plaza, Inc. v. Kosteas, 378 Mass. 85, 89 (1979)], "even though the particular relief [which plaintiff] has demanded and the theory on which he seems to rely may not be appropriate." Nader, 372 Mass. at 104 (citations omitted). "A complaint should [also] not be dismissed simply because it asserts a new or extreme theory of liability or improbable facts." Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 934 (1983). "[I]t is important that new legal theories be explored and assayed in light of actual facts rather than a pleader's suppositions." New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 30 (1988) quoting 5 Wright & Miller, Federal Practice and Procedure, §1357 at 603 (1969 and supp. 1987). Patriarca v. Center for Living and Working, Inc., 1999 WL 791888 at 4 (Mass.Super. Sept. 8, 1999) (Wernick, J.). ARGUMENTS 1.Where Article V of the Massachusetts Declaration of Rights requires all public employees of the three branches of the government of the Commonwealth of Massachusetts to be accountable to the people at all times, this court is precluded from applying to this case the Massachusetts Tort Claims Act,

  tags: denial, of, medicaid, constitutional, rights

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