The Commonwealth of Massachusetts Appeals Court (“Massachusetts Appellate Court”) held in its unpublished Memorandum and Order Pursuant to Rule 1:28 filed on July 24, 2019 that “The lack of expert opinion as to causation is an even greater hurdle than the lack of evidence of negligence. Without expert guidance, a lay jury do not have the knowledge to determine whether the placement of a screw in the disc space at C4-C5 was the cause of the various ailments that the plaintiff contends led to her being totally disabled.”
The Massachusetts medical malpractice plaintiff alleged that the defendant neurosurgeon negligently performed a spinal fusion operation and mispositioned some hardware in her spinal column, causing her serious injury. Prior to the February 10, 2011 surgery, the plaintiff, a licensed practical nurse, had come to the defendant with a large disc herniation in her spine at C5-C6, with attendant symptoms including pain radiating down her right arm. After the surgery, the plaintiff continued to have significant pain and other symptoms, including weakness in her left arm and generalized upper body weakness.
A subsequent treating surgeon determined that one of the screws for the cervical plate placed by the defendant neurosurgeon was malpositioned in the C4-C5 disk space. In July 2012, the subsequent treating surgeon removed the cervical plate and screws, and then replaced the hardware for the plaintiff’s spinal fusion.
During discovery in the plaintiff’s Massachusetts medical malpractice lawsuit, the plaintiff was asked to disclose any expert opinion that she intended to rely on, and she disclosed no such testimony. The defendant moved for summary judgment, arguing in part that absent expert testimony the plaintiff could not show (1) that the defendant failed to meet the requisite standard of care, and (2) that the plaintiff’s injuries were caused by the defendant’s alleged negligence. The plaintiff did not timely oppose the summary judgment motion, and it was granted on April 2, 2018.
On appeal, the plaintiff conceded that she has no supporting expert opinion but contends that negligence by the defendant can be inferred solely from the medical records. Alternatively, in her appellate brief the plaintiff contended that as a Licensed Practical Nurse, she qualifies as an expert who could provide an opinion in support of her claims.
The Massachusetts Appellate Court stated: “This case is not the exceptional case where expert testimony is not required. The discipline at issue is neurosurgery — which includes operation on the spine and central nervous system. The notes of the medical providers, standing alone and without elaboration, do not suffice to allow a lay jury to conclude that the defendant neurosurgeon did not meet the applicable standard of care, or that the plaintiff’s injuries were causally related to any negligence. Indeed, there is no evidence defining the applicable standard of care. There is no explanatory evidence of what the operation at issue entailed, how difficult or easy it was to perform, what the expected outcome was, or whether the outcome for the plaintiff was outside that expected range. None of the treating physicians who saw the plaintiff after the operation by [the defendant] was deposed, or submitted affidavits. The lack of expert opinion as to causation is an even greater hurdle than the lack of evidence of negligence. Without expert guidance, a lay jury do not have the knowledge to determine whether the placement of a screw in the disc space at C4-C5 was the cause of the various ailments that the plaintiff contends led to her being totally disabled.”
The Massachusetts Appellate Court further held: “we cannot agree with the plaintiff’s contention, made for the first time on appeal, that she has the training and expertise to provide the required expert testimony as to the medical issues presented by her claims. “‘The crucial issue,’ in determining whether a witness is qualified to give an expert opinion, ‘is whether the witness has sufficient “education, training, experience and familiarity” with the subject matter of the testimony'” … While the plaintiff is no doubt knowledgeable and experienced as a registered nurse, she is neither a medical doctor nor an expert in the central nervous system.”
Source Santiago v. Doorly, 18-P-1123.
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