Lindsay Clancy's Providers Say the Law Shuts the Door on Patrick Clancy's Lawsuit. The One Witness Who Could Answer Cannot Speak Yet.

Cora was five. Dawson was three. Callan was eight months old. They died in their home in Duxbury on January 24, 2023, and their mother, Lindsay Clancy, is charged with three counts of first-degree murder. Her criminal trial ended on September 4 in a mistrial, a jury that could not agree, and she remains presumed innocent on every count. From the first morning of that trial, one question has hung over everything we have covered in the Duxbury Mom case: is this a mother who killed her children, or a mother in the grip of a psychosis that the people treating her never stopped?

On Wednesday afternoon, October 28, the second half of that question walked into a different courtroom.

Patrick Clancy, the children's father and Lindsay Clancy's former husband, is suing the providers who treated her in the months before that night. He is not suing her. He is suing Dr. Jennifer Tufts and her practice, Aster, and nurse practitioner Rebecca Jollotta and South Shore Health. His lawsuit says they over-medicated her, failed to coordinate her care, failed to watch her, and that their failures are a cause of his children's deaths. On Wednesday, in Norfolk Superior Court, the providers asked the judge to throw the case out before it ever gets started.

There was no jury. No witness took an oath. It was about forty-five minutes of three lawyers arguing over one Massachusetts statute and one question underneath it. Did Lindsay Clancy ever tell these providers that she might harm her children?

And here is the thing I could not stop thinking about while going back through it. The providers say the answer is no, and that the answer is in their own records. Patrick Clancy's lawyer says the answer is yes, and that the person who will say so is Lindsay Clancy. The one witness who could settle the question cannot speak yet. Her criminal case is still open, she has a Fifth Amendment right not to testify while it is, and the providers want the lawsuit ended now, on the papers, before she ever can.

That is the day. Let me walk you through it.

THE WHOLE HEARING, UNCUT (PART 78) Lindsay Clancy's Providers Ask a Judge to Throw Out Patrick Clancy's Wrongful Death Suit

A different courtroom, and a different kind of case

Before we go one step further, I want to be clear about what this hearing was and what it was not, because the two cases are going to be confused in a lot of places this week.

This was not the murder case. The Commonwealth of Massachusetts against Lindsay Clancy is a criminal prosecution in Plymouth, in front of Judge William F. Sullivan, and it is not over. Her lawyers are back in that courtroom on Monday, November 2, with a motion to dismiss the case, and the judge has told both sides to come ready to talk about a date for a second trial. Nothing said on Wednesday is evidence in that case, and nothing said on Wednesday is a finding about her.

What happened Wednesday is a civil lawsuit, filed by Patrick Clancy for himself and as the legal representative of the estates of his three children. Wrongful death cases in Massachusetts belong to the estate of the person who died, which is why his lawyer, Howard Cooper, stood up and named each child and their age before he said anything else. There is no prosecutor in a civil case and nobody goes to prison. The question is whether the people who were supposed to be treating Lindsay Clancy owed a duty of care, whether they met it, and whether any failure helped cause what happened. At trial, the burden is the lower civil one: more likely than not.

But Wednesday was not about any of that yet. Wednesday was a motion to dismiss, and you need to understand what that is to understand why this hearing matters.

A motion to dismiss for failure to state a claim is the earliest exit a defendant can ask for. The judge does not hear evidence. The judge does not decide who is telling the truth. The rule is that the court takes everything the complaint says as true, along with every reasonable inference from it, and asks one question: if all of this is true, does the law give the plaintiff a claim? If the answer is no, the case ends. No discovery. No depositions. No records turned over. No one under oath. Over.

That is what the providers asked for. And they asked for it on the strength of one statute.

The statute the providers are standing on

The statute is Massachusetts General Laws, Chapter 123, Section 36B. You are going to hear "36B" a lot if this case keeps going, so let me put it in plain English.

It says a licensed mental health professional owes no duty to warn, or in any other way protect, the potential victims of a patient, and cannot be sued for failing to, unless one of two things is true. The first: the patient communicated to the professional an explicit threat to kill or seriously injure a reasonably identified victim, and the patient had the apparent intent and ability to carry it out. The second: the patient has a history of physical violence known to the professional, and the professional has a reasonable basis to believe there is a clear and present danger the patient will attempt to kill or seriously injure a reasonably identified victim. Even when one of those is met, the professional is liable only for failing to take reasonable precautions.

The lawyer for Rebecca Jollotta and South Shore Health, Timothy Sweetland, opened the hearing by reading it straight off the page: "there shall be no duty owed by a licensed mental health professional to take reasonable precautions to warn or in any other way protect." He leaned on those last words, "or in any other way protect," and told the judge that phrase takes the statute well past a failure-to-warn claim.

His argument came in two steps. Step one: the statute applies here, because these are mental health providers and the claims are brought on behalf of third parties, the children, who were harmed by their patient. Step two: the statute is the only road to recovery. He told the judge the courts that have read it have made clear it wiped out any ordinary common-law duty a mental health professional would otherwise owe to third parties, and he read from a 2011 Appeals Court decision that, in his telling, found it "impossible to glean from such strong language the intention to permit additional liability based on common law."

He set aside the plaintiff's best authority, a line of cases holding that a regular physician who fails to warn a patient about a drug's side effect, drowsiness for example, can owe a duty to the stranger that drowsy patient hits on the road. That was a regular doctor, he said. The Legislature decided mental health professionals are different, and it wrote that decision into 36B.

Then he narrowed the field. Exception two, the history of violence, does not apply. Lindsay Clancy had no history of physical violence, and nobody in the room disputed that. So the whole case, in the defense's telling, comes down to exception one. Did she communicate an explicit threat to kill or seriously injure her children, to these providers, with the apparent intent and ability to carry it out?

I want you to hold onto the words in that exception, because the rest of the hearing is a fight over them. Explicit. Threat. Communicated to the professional.

When did "she told them" first appear?

This was the defense's real push, and it was a sharp one.

Sweetland conceded the ground rule. This is an early motion, and the court normally accepts the complaint's allegations as true. But, he said, only when those allegations are not speculative, not conclusory, and have a good-faith basis in fact. And then he told the judge the history of this lawsuit.

The case was filed in January 2026. The original complaint, he said, was "incredibly detailed." Eighty-six paragraphs. It quoted Lindsay Clancy's treatment records directly, which tells you the plaintiff had those records from the start. And nowhere in those eighty-six paragraphs, he said, did the plaintiff ever allege that Lindsay Clancy told these providers she had thoughts of harming her children, "much less an explicit threat." His explanation for why: it is not in "the hundreds of pages of medical records" the plaintiff has.

Then the providers served their motion to dismiss. The plaintiff asked for thirty days to oppose it, and got them. And as those thirty days were running out, he said, instead of an opposition, "we got an amended complaint in response to our arguments." And in that amended complaint, for the first time, came the allegation that she had communicated those thoughts to the providers. He asked the judge to consider that timing when ruling.

THE DEFENSE ARGUMENT, IN FULL (CLIP) Lindsay Clancy's Providers Say the First Complaint Never Said She Told Them About Harming Her Kids

Let me be fair to that argument, because it is a real one. If you are a defendant, and the other side reads your motion, sees exactly which fact it needs to survive, and then pleads that fact for the first time, you are going to stand up and point at the calendar. That is good lawyering, and I would want my lawyer to do it.

But think about what it actually asks the judge to do. Amending a complaint after a motion to dismiss is not a trick. It is how the rules are built. A motion to dismiss tells the other side what the defense thinks is missing, and the other side gets a chance to fill it. Cooper made that point later: "complaints get amended all the time," and getting more information on an issue a motion raises is not bad faith. The timing is a fair thing to argue at trial, in front of a jury, when the plaintiff has to prove where the allegation came from. Whether it is a reason to end a case at the starting line is a different question, and the judge did not say how he sees it.

What the amended complaint says, and paragraph 57

So what does the new allegation actually say? According to the defense, it comes in two shapes.

The first: Lindsay Clancy told her husband at the time, Patrick, and her mother, that she was having intrusive thoughts about harming her children. And from that, the complaint reasons, a reasonable jury could conclude that she told her providers too. Sweetland called that "a leap," speculation the pleading rules do not allow.

The second: an allegation made "upon information and belief" that she communicated those intrusive thoughts to the providers. That phrase, "information and belief," is a lawyer's way of saying: we believe this is true, but we are not alleging it from our own direct knowledge. It is allowed. It is common. And Sweetland's complaint was that the plaintiff never said where the belief came from. No affidavit from Patrick Clancy. None from Lindsay Clancy. None from anyone.

The judge broke in at that point, the one time during the defense argument that he did. He pointed to page 11 of the amended complaint, paragraph 53, which says she reported her intrusive thoughts to Dr. Tufts. Sweetland said he would get to it.

What he got to next was paragraph 57, and it was the defense's strongest card. Paragraph 57, he said, is the only specific exchange the amended complaint describes on this subject. In it, his client, Rebecca Jollotta, asks Lindsay Clancy directly whether she has ever had thoughts of harming her children. And she answers no.

So, he said, the one concrete conversation the plaintiff pleads runs against the plaintiff. And even if the court accepts every other allegation, none of it says she ever communicated an explicit threat to kill or seriously injure her children. He asked the judge to rule that 36B applies, that it is the only route to recovery, that the amended complaint is speculative and conclusory, and that it pleads no explicit threat.

Then he said something I want to give him credit for. He told the judge the facts of this case "are as horrible and as tragic and as awful as a case that any of us will ever be involved in," and that he was not immune to that. And then he gave the Legislature's reason for 36B as he understands it: that events like these are "so unpredictable and so unpreventable" that it is unfair to hold mental health professionals responsible for them unless the statute's exceptions are met.

Sit with that sentence for a minute. Unpredictable and unpreventable. That is the providers' position about what happened in Duxbury. Patrick Clancy's lawsuit says the opposite: that the warning signs were in the providers' own notes, and that the care she received is part of why nobody stopped it. That is the fight, in one line.

"Information and belief"

The second defense lawyer, Mary Alys Azzarito, represents Dr. Tufts and her practice. She joined everything Sweetland said and added a few points of her own.

She reminded the judge that the pleading standard has tightened in recent years. A complaint today has to show a plausible right to relief; a set of facts that is merely consistent with one is no longer enough. Then she went through the amended complaint paragraph by paragraph. Paragraphs 66 and 67: she told her mother, she told her husband. "There's no clear evidence that she told her providers." Paragraph 79: information and belief. Paragraph 83: information and belief. Paragraphs 100 and 101: information and belief.

And on page 11, the page the judge himself had pointed to, she said the words actually attributed to the records contain no explicit threat and no explicit intention to harm anyone.

Then she did something I want you to notice. She acknowledged that this was a Rule 12 motion and that the judge "can't really take into account" testimony from the criminal case. And then, in the very next breath, she took him there anyway. "There is sworn testimony in this case," she said, meaning the criminal trial, and if there were any plausible right to relief based on actual evidence, plaintiff's counsel would have brought it to the court's attention. "There's no foreseeability. Everybody was shocked at this outcome."

Everybody was shocked. Hold that against what the plaintiff says is in the notes, which we are about to get to. But also hold it against the rule she had just stated. A motion to dismiss is decided on the complaint. The criminal trial record is not in front of this judge, and the defense lawyer told him so before reaching for it. That cuts both ways, and to be fair, Cooper reached for the criminal trial too before the afternoon was over. But a defense asking a court to end a case on the pleadings should not also be asking it to weigh a record that is not before it.

"You know who hasn't testified yet?"

Howard Cooper asked to speak from the podium so he could see his notes, and he started by naming the children. Cora, five years old. Dawson, three. Callan, eight months. Then he told the judge, "What you just heard is a closing argument, Your Honor, completely inappropriate for a motion to dismiss at this stage."

He set out three points and then argued them.

First, procedure. This is a motion that takes everything in the complaint, and every reasonable inference from it, as true. The tightened plausibility standard does not change that, he said. He told the judge the state's highest court has held that allegations made on information and belief are taken as true at this stage, so the defense was spending half its time complaining about things the court must accept. And every case the defense relies on, he said, was decided at summary judgment or after trial, on a full record. Not one of them was a motion to dismiss.

Second, the law. The statute does not take over the whole field of negligence. In his reading, 36B answers one narrow question: when a mental health provider must break a patient's confidentiality to warn an intended victim or call the police. That is what "in any other way protect" means to him. If the Legislature had wanted to shield mental health providers from ordinary malpractice liability, he said, it had to say so in the statute, and it did not.

Third, the facts. This is not a failure-to-warn case. It was never brought as one. It is a wrongful death medical malpractice case, with at least eight separate allegations of how the providers' care fell below the standard. The defense, he said, had built "a straw claim that doesn't exist" and then knocked it down.

And then he said the line the whole hearing turned on.

"It's an amazing thing to me for counsel to suggest that we should have definitive information as though we're about to close to a jury," he said. "You know who hasn't testified yet, Your Honor? Lindsay Clancy."

THE LINE THE HEARING TURNED ON (CLIP) Patrick Clancy's Lawyer Says Lindsay Clancy Will Confirm She Told Providers of Homicidal Thoughts

He told the judge the complaint alleges, in good faith, that once her Fifth Amendment issues are resolved, "one way or the other," Lindsay Clancy will testify that she told these providers explicitly that she had homicidal ideation and was worried something awful would happen to her children.

"Can't imagine a more explicit threat," he said. "Defendants seem to think that you need to have a date, time, place, and manner in which that threat's going to be delivered. That's not what the statute says or requires."

Let me slow down here, because this is the center of the whole case and it is easy to miss what it means.

The defense's motion rests on the claim that there is no pleaded explicit threat. The plaintiff's answer is a witness. Not a document. Not a note. A person, and the one person on the other side of those appointments. And that person cannot testify right now. Lindsay Clancy has a criminal case pending. Anything she says under oath in a civil case can be used against her in the criminal one. She has a constitutional right not to be a witness against herself, and as long as the Commonwealth is trying to convict her, she has every reason to use it.

So here is the question I want you to weigh. Should a lawsuit end, before any discovery, because the plaintiff cannot yet produce testimony from a witness who is constitutionally unable to give it? The defense says the plaintiff has had the records all along and the records say no. The plaintiff says the records were written by the defendants, and the patient will say otherwise when she can. A motion to dismiss asks whether the claim, if true, is a claim. Deciding whose version of the appointment is true comes later, on a record.

That is my view, and I want to say it plainly: I do not think a case like this should be decided on the pleadings while the one person who could answer the defense's question is locked out of answering it. If the evidence never comes, the providers will win later, at summary judgment, on a record. Ending it now means ending it on the only point the plaintiff is barred from proving yet.

The question itself

Cooper then walked through the story the complaint tells, and I am going to give it to you as he gave it, as allegations.

Patrick and Lindsay were married in December 2016. After each of their first two children, she suffered meaningfully from postpartum depression. When Callan was born in May 2022, she came to experience far more significant stress and anxiety, and she sought help. She sought it from these defendants, at different times but overlapping. And the complaint says those providers failed to coordinate with each other and failed to talk to each other. Dr. Tufts, Cooper said, never saw Lindsay Clancy in person.

He said the complaint lays out the drugs that were prescribed, and that if a jury hears that those drugs were not coordinated, or were the wrong drugs, and that no blood plasma tests were done, it will have no trouble concluding the negligence was a cause of her psychosis being left untreated to the point where her children faced a foreseeable risk of harm.

And then he made the argument I found the most interesting of the whole afternoon. The complaint alleges that these providers asked her about homicidal ideation.

"You don't ask a question about homicidal ideation," he said, "unless you are concerned that your patient may go out and hurt somebody. In this instance, her children."

THE "ON NOTICE" ARGUMENT (CLIP) Patrick Clancy's Lawyer Argues Lindsay Clancy's Doctors Were on Notice the Children Were in Danger

Now put that next to paragraph 57. The defense's best card is that a provider asked Lindsay Clancy whether she had thoughts of harming her children, and she said no. Cooper's answer turns the same exchange around. The fact that the question was asked at all, he argues, tells you what the provider was worried about. And then he added the piece that, to me, matters most. The notes, he said, record that she had poor insight. "If you're relying on your patient who you think has poor insight to answer a question whether you have homicidal ideation, that's a problem."

I think that is a fair point, and a serious one. A "no" from a patient you have yourself documented as lacking insight into her own condition is not the same thing as a "no" from a patient who sees herself clearly. Whether the providers did enough with that answer is exactly the kind of question a malpractice case is supposed to test with experts and records. It is not something a judge can resolve from the bench on a motion to dismiss. Cooper said as much: at the malpractice tribunal stage, which is the Massachusetts screening step for medical cases, the plaintiff would have experts saying it. A motion to dismiss does not require that.

He also said there was "overwhelming evidence" from the criminal trial that these providers were on notice, while acknowledging that every lawyer in the room agreed it would be improper to rely on it. So both sides reached for the criminal record on Wednesday after saying it was off limits. I am noting that against both of them. The judge has to decide this motion on the complaint, and so should we when we talk about it.

The notes

Cooper then turned to the one place where the plaintiff has something concrete in hand: the providers' own notes, as the amended complaint quotes them. And he conceded the defense's point before he answered it. Yes, he said, some of this is alleged on information and belief, "but we have a good source for this."

The first piece of that source is the family. The evidence that Lindsay Clancy told her mother and Patrick that she was having homicidal thoughts toward her children is, he argued, also evidence that she told her providers. His reason, as he put it: Dr. Tufts testified at the criminal trial about what a terrific reporter Lindsay Clancy was. If she was a terrific reporter of her symptoms, and she reported these thoughts to her family, a jury could conclude she reported them to the people treating her too.

The second piece is the notes themselves. He read from the language the complaint quotes. Lindsay reports she is suspicious of others. That she is suicidal. That she is concerned something bad is going to happen. That she does not want to be left alone. "She's worrying about her kids, especially the baby." Racing thoughts. Frustrated and scared. Not connected to her body. A panic state. Feeling afraid something awful might happen. "Intrusive thoughts over and over again." Harm to the children.

Then, to his credit, he corrected himself on the record. He said he had merged things said to Dr. Tufts with things said to nurse practitioner Jollotta, and did not mean to suggest each of those things had been said to each of them, only that a combination of them was said and reported. That is the kind of correction I want to see a lawyer make, and I want you to read the list above with it in mind.

He also reminded the court of something everyone who watched the criminal trial will remember. Kevin Reddington, Lindsay Clancy's criminal defense lawyer, made a major point at trial that these same notes were wrong and incomplete. And, Cooper said, despite Dr. Tufts' denial that she meant something else, there is evidence the notes can properly be questioned.

Stop there, because this is the strange geometry of this case. The providers' best defense in the civil case is their own notes: hundreds of pages, they say, and nowhere a threat. The plaintiff in the civil case says those notes are both evidence of what the providers knew and, at the same time, incomplete. And the notes' accuracy has already been attacked once, in the criminal trial, by the defense of the woman whose words they record. If those notes are the whole record of what Lindsay Clancy told her providers, and the lawsuit ends on them, nobody ever tests them.

December 2nd

Cooper's longest stretch was about one date. December 2, 2022, as the complaint quotes the notes. Lindsay reports she knows she wants to be here, feels like she is going to die but doesn't care. Unmanageable anxiety about her children, especially the baby.

His argument from that note came in two steps.

The first was logic. When a mother of children that young tells her doctor she is thinking about killing herself, and mentions her children, and says she is afraid for them and for the baby, "there is of course an imminent threat of harm." She is the primary caretaker. "Even if it was just suicidal ideation, who's going to watch the kids if she kills herself?" The providers, he said, were on notice of that.

The second was the standard of care. The complaint pleads, from the medical literature, that the standard is to recognize danger to the children when a mother of small children is potentially suicidal. He said they had not attached the articles because the case is not at that stage yet. And then he came back to the statute's word, explicit, and attacked the idea that it needs a spoken plan. "What mother," he asked, "is going to report that she feels like she's a danger to her kids and risk losing her kids?"

He kept going. The fear that something awful might happen repeats through December, he said, including in seventeen-minute Zoom calls between Lindsay Clancy and Dr. Tufts. The complaint describes what Lindsay was reporting to Patrick, and to her mother, Paula Musgrove, who is a nurse, who has not been deposed, and who, Cooper said, was communicating with at least one of these providers. And in the providers' own notes, as he read them from paragraph 64: crazy, depressed, becoming a disaster, messed up beyond repair.

Here is where I want to be careful and honest with you, because the law matters. The statute's exception asks for an explicit threat to kill or seriously injure a reasonably identified victim. A suicidal mother who fears for her children is, on the plain words, not obviously making a threat to kill them. That is the defense's strongest ground, and if the judge decides this case is governed by 36B, the plaintiff has a hard road on that exception. Cooper knows it, which is why the notes argument was his fallback, not his lead.

His lead was that the statute is the wrong yardstick altogether.

Is this a warning case at all?

This is the legal heart of the motion, and it is a genuinely open question.

Starting at page 17, paragraph 82, Cooper told the judge, the amended complaint lists the departures from the standard of care. He did not read them out. The ones he had already described were uncoordinated prescribing, the wrong drugs, no blood plasma tests, seventeen-minute remote visits, and reliance on a patient recorded as having poor insight. None of the listed departures, he said, has anything to do with failing to warn someone or call the police. They have everything to do with the ordinary duty every doctor owes a patient, the duty the Legislature did not touch when it wrote a statute about "when a mental health provider needs to pick up the phone or drop a dime and disclose HIPAA protected information about their patients."

So the bottom line, he said: if the statute applies, the complaint pleads it. But it does not apply.

He told the judge the defense was relying on that 2011 Appeals Court decision while ignoring a 2018 decision of the Supreme Judicial Court, the state's highest court, which he said holds that the statute does not do away with common-law duties. He handed up an out-of-state decision from New Jersey, from 2006, on what he called a virtually identical duty-to-warn statute, and read it as holding that such a statute does not immunize a practitioner who abandons a seriously depressed patient and fails to treat her to the accepted standard of care. He acknowledged New Jersey does not bind a Massachusetts court. He said it was on point anyway.

And then the line of the afternoon from his side. "Counsel want you to read this statute as immunizing them from their own medical malpractice in the non-duty to warn context. Crazy. I don't think that argument can be made with a straight face."

He finished on how statutes are read. Plainly, logically, with common sense, and never past the Legislature's clear intent. And, citing another decision of the state's highest court, if the Legislature wants to immunize anyone from liability, it must say so. "Nowhere in this statute will you find language that says mental health providers," separate from whether they warned someone or took protective action toward third parties, "cannot be sued for medical malpractice. It's not there."

A word on why I am not naming the cases. Both sides cited decisions by name in court, and those decisions may say exactly what the lawyers said they say. But on this channel, a court decision does not get named until the opinion itself is on our disk and has been read by two of us who agree on what it holds. These have not been through that yet, so I am describing them by court and year, as the lawyers presented them, and I am not telling you what they hold as a fact. When we have read them, you will hear about it.

The judge's one question

The judge had been almost silent for most of forty-five minutes. When Cooper finished, he said it had been very well argued by all three of them, and then he asked one question. He asked the defense to talk him through the 2018 high-court decision against its own reliance on the 2011 case.

That question matters more than anything else he said, because it tells you what he is weighing. He is not, at least from that question, focused on the timing of the amended complaint, or on paragraph 57, or on whether "information and belief" is good enough. He is focused on the threshold legal question: does 36B reach a claim like this at all? Is it the only source of a mental health provider's liability to third parties, or does it govern only the duty to warn and protect?

The lawyer who opened for the defense took it, and it was the defense's best moment of the day. The 2011 case, he said, was not only a warning case. The plaintiff there had also alleged a failure to hospitalize the patient, which is exactly what Cooper would call straightforward medical negligence. And that court, he said, dismissed both the warning claims and the failure-to-hospitalize claim, finding it impossible to read the statute's strong language as leaving room for added common-law liability. "So it's not crazy," he said, "and it's not an argument that I can't make with a straight face. I can absolutely make it with a straight face because that's exactly what the court said."

Then he conceded something I did not expect. He told the judge he understood this is a well-pleaded complaint in the sense that it makes many allegations of straightforward medical malpractice, a lot of theories. And should the case proceed, the defendants will have answers: the daily contact Lindsay Clancy had with her providers, and everything they did to try to manage her prescriptions and help her. "That hasn't come out yet," he said, "but it will if this case were to proceed."

And he closed where he started. There is a statute, there are two exceptions, everyone agrees she had no history of violence, and what he did not hear in all of Cooper's argument was the factual basis for the allegation that she told these providers she intended to harm her children. The reason, he said, is that in "the hundreds and hundreds of pages of medical records," it is not there, "despite her being asked repeatedly over and over again."

There was a little levity at the end. Cooper asked if the judge didn't want to hear from him for another ten minutes. The judge thanked everyone. And the next case was called.

No ruling, and what the ruling turns on

There was no ruling from the bench. The audio at the end of the hearing is garbled right where the judge would have said what he was doing, but boston.com reported it the same day: Judge Michael Doolin took the motion under advisement and did not rule. There is no date for a decision.

So here is where it can go, as I read it. The judge could deny the motion entirely, on the ground that the complaint pleads ordinary malpractice that 36B was never meant to reach. He could allow it in part, dismissing anything that sounds like a failure to warn or protect while keeping the treatment claims alive. He could find 36B governs everything and that no explicit threat is pleaded, and dismiss, with or without a chance to amend again. Or, because the plaintiff's key witness is behind a Fifth Amendment wall, the court could find a way to let the case sit until that wall comes down.

The most important of those questions is the one the judge asked about. If 36B covers how a mental health provider medicates, monitors and treats a patient, and not only whether that provider warns someone, then most of this lawsuit is over, and so is most of every lawsuit like it in Massachusetts. That would mean a family harmed by a psychiatric patient can sue the people treating that patient only if the patient said the explicit words out loud, to the provider, and the provider wrote it down or admits it.

I think that is too much weight to put on a statute that, on its face, talks about warning and protecting. And I think it is worth asking why a statute written to answer one question, when a provider has to break confidentiality, should also answer a completely different one, whether a provider was careless with a patient's care. That is my opinion, read from the words the lawyers read aloud on Wednesday. A judge with the full opinions in front of him may see it differently, and he is the one whose reading counts.

The sentence that cuts both ways

There is one more thing I want to put in front of you, because I think it is the most important thing that happened in that room for anyone following the criminal case.

Patrick Clancy's lawyer stood up in open court and told a judge that Lindsay Clancy's psychosis was left untreated, and that the providers' mismanagement of her mental health care was a substantial cause of what happened. That is, in its essentials, the theory her criminal defense put in front of the jury. In the criminal case, the defense has conceded the acts and contested her criminal responsibility, arguing that she was not responsible because of her mental condition and the medications she was on. The father of these children, through his lawyer, is now arguing in a different courtroom that her treatment failed her.

And in the same breath, his lawyer told the court that Lindsay Clancy will testify she told her providers she had homicidal ideation and feared something awful would happen to her children.

Think about what that sentence could do in the criminal case. To the civil plaintiff, it is proof the providers were warned. To a defense arguing she was in a psychiatric crisis she could not control, it might be proof of how sick she was and how long she had been begging for help. To a prosecutor at any second trial, the same words might be read very differently: as evidence that she understood what she was thinking, long before that night. I am not saying which reading is right. I am saying the same sentence can be pulled in opposite directions depending on which courtroom it is said in.

That is exactly why her Fifth Amendment right matters here, and why I do not think the civil case should be decided as if her silence is evidence of anything. She is not silent because there is nothing to say. She is silent because the Commonwealth is still trying to convict her, and the Constitution says she does not have to help it. A civil court that ends a father's lawsuit because his key witness is exercising that right would be letting one case's process decide another case's outcome.

Where this leaves the case

Nothing was decided on Wednesday. The amended complaint stands. The motion is under advisement. Lindsay Clancy remains presumed innocent on all three counts of first-degree murder, and nothing anyone said in Norfolk Superior Court is a finding about her.

On Monday, November 2, at nine in the morning, the criminal case is back in Plymouth, where Judge Sullivan has a defense motion to dismiss in front of him and a retrial date to discuss. We will be there.

And somewhere between those two courtrooms sits the question this whole case keeps coming back to. Was this a mother who killed her children, or a mother the people treating her failed to see? The criminal jury could not agree on an answer. On Wednesday, the providers asked a judge to rule that, under Massachusetts law, they never have to answer it at all.

I want to hear from you. If a patient's own family says she told them she was afraid of hurting her children, and the patient's providers say their notes show she never told them, who should get to decide what happened in those appointments: a judge reading the pleadings now, or a jury hearing everyone, including her, later?

The court decides. But it should decide on a record, and right now the record is missing the one voice everybody in that room was arguing about.