By its decision entered on March 11, 2015, the Commonwealth of Massachusetts Appeals Court (“Appeals Court”) overturned the dismissal of one of the defendant physicians in a medical malpractice case, finding that the dismissal of the defendant physician was prejudicial error because the plaintiff had provided sufficient offer of proof as to that defendant’s medical negligence that led to the plaintiff’s alleged injury.
The Underlying Facts
The plaintiff filed a Massachusetts medical malpractice case, naming two physicians as defendants:
The plaintiff had surgery performed by the defendant surgeon to repair an aortic aneurysm. The defendant surgical intensive care unit (SICU) attending physician (“defendant attending physician”) provided care to the plaintiff in the SICU following surgery. Both defendants had provided follow-up care to the plaintiff after his surgery.
During the surgery, a drain was installed to drain the plaintiff’s spinal fluid to encourage blood flow to the spinal cord and decrease spinal fluid pressure, thereby lowering the risk of spinal injury. The plaintiff’s medical expert opined that the defendants ordered the drain removed prematurely (less than forty-eight hours after surgery), which resulted in the plaintiff suffering spinal cord ischemia, partial paralysis, and neurogenic bladder that requires catheterization. The plaintiff’s expert stated that the defendants breached the acceptable standard of care that required that the drain remain in place for at least seventy-two hours after the surgery.
Specifically with regard to the defendant attending physician’s medical negligence, the plaintiff’s expert opined that his care fell below the standard of care when he failed to recognize and appreciate the need for maintenance of the spinal drain for 72 hours post-operatively and when he ordered removal of the spinal drain less than 72 hours after the plaintiff’s surgery.
The defendant attending physician argued that the plaintiff’s expert’s opinion did not properly address the facts because the defendant attending physician never ordered the drain removed but rather relied upon the defendant surgeon’s orders to remove the drain. The lower court agreed, dismissed the plaintiff’s case against the defendant attending physician, and the plaintiff appealed.
The Appellate Court reviewed the lower court record and determined that the record suggests that the defendant attending physician either independently, or together with the defendant surgeon, ordered removal of the plaintiff’s drain (the defendant attending physician had written in the plaintiff’s medical record, “Spinal drain capped, will removed [sic] if exam remains good after 6 hours,” which the Appellate Court stated could reasonably be understood to mean that the defendant attending physician’s independent postoperative plan for care consisted of the drain’s removal).
The Appellate Court also noted that the defendant attending physician’s notation in the medical record suggests that he knew the plan was to remove the drain prior to seventy-two hours, and that he was both in agreement and failed to recommend otherwise. Furthermore, there was no suggestion that the defendant attending physician consulted with the defendant surgeon or deferred to the defendant surgeon’s judgment, or that the defendant surgeon had more experience than the defendant attending physician.
Therefore, the Appellate Court held that “[t]he judgment dismissing the plaintiff’s claims against [the defendant attending physician] is vacated, and a new decision shall enter that the offer of proof by the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.”
Source Normand vs. Cambria & another, 14-P-122.
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