In its unreported opinion filed on January 3, 2017, the Massachusetts Appeals Court held the Massachusetts medical malpractice tribunal’s finding that the plaintiff’s offer of proof was insufficient was erroneous and thus the judgment dismissing the plaintiff’s Massachusetts medical malpractice claims against the defendants was vacated and the matter was remanded to the Superior Court where the findings of the tribunal are to be replaced by the Appeals Court decision that the offer of proof by the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.
The Underlying Facts
The plaintiff had a history of symptomatic gallstones with multiple attacks. On October 19, 2012, the Massachusetts medical malpractice defendants performed a laparoscopic cholecystectomy on the plaintiff. After discharge, the plaintiff experienced worsening abdominal pain, nausea, and vomiting that led her to seek medical attention including multiple emergency room visits. An exploratory laparotomy was subsequently performed and a right anterior bile duct disruption was found, which required surgery to repair the injury.
The plaintiff filed her Massachusetts medical malpractice claim after which a Massachusetts medical malpractice tribunal determined that the plaintiff’s required offer of proof was insufficient to raise a legitimate question of liability as to both defendants. After the plaintiff failed to post a bond, and judgment entered for the defendants, the plaintiff appealed.
The plaintiff’s offer of proof before the medical malpractice tribunal consisted of her medical records and an opinion letter from a surgeon from New Jersey. In his opinion letter, plaintiff’s medical malpractice expert concluded that the standard of care was violated during the plaintiff’s gallbladder removal surgery when the defendants failed to properly visualize and identify the bile ducts and other biliary structures, causing injury to the right anterior bile duct.
Offer Of Proof
The Massachusetts Appeals Court stated that a plaintiff’s offer of proof as to negligence will prevail before a medical malpractice tribunal if she (1) shows that the defendant is a provider of health care; (2) demonstrates that the health care provider did not conform to good medical practice; and (3) establishes resulting damage. The Appeals Court stated that the only issues on appeal in this case were whether the plaintiff’s offer of proof shows that the defendants’ treatment did not conform to good medical practice, and causation.
The Massachusetts Appeals Court held that the plaintiff’s expert’s opinion letter discusses the presence of these requirements: he first describes the appropriate standard of care required of the defendants for the procedure and then he concludes, in essence, that the type of injury the plaintiff suffered could only have occurred as a result of the defendants’ failure to apply this standard.
In discussing the defendants’ argument that the plaintiff’s expert’s opinion letter concerning the defendants alleged deviation from the standard of care and the causal link to the plaintiff’s injury are conclusory, leaving these required elements to be impermissibly based on speculation, the Appeals Court stated it could not, at this early stage, discern whether an inference of negligence is unreasonable: the plaintiff’s offer of proof was thus sufficient to pass the tribunal stage.
Source Paretchan v. Kwasnik, 16-P-285.
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