The Commonwealth of Massachusetts Appeals Court (“Massachusetts Appeals Court”) held in its Memorandum and Order entered on October 13, 2017 that the dismissal of the plaintiff’s medical malpractice case after a medical malpractice tribunal determined that the plaintiff’s offer of proof failed to raise a legitimate question of liability appropriate for judicial inquiry was in error, and therefore vacated the dismissal and remanded the case.
The Massachusetts Appeals Court stated that a plaintiff’s offer of proof will prevail before a tribunal if he (1) shows that the defendant is a provider of health care as defined in § 60(B); (2) demonstrates that the health care provider did not conform to good medical practice; and (3) establishes resulting damage.
In the case the Massachusetts Appeals Court was deciding, the plaintiff’s offer of proof consisted of the medical records relating to his robotic-assisted laparoscopic radical prostatectomy with lymph node dissection performed by the defendant surgeons as well as an opinion letter and curriculum vitae of a board-certified urologist (“plaintiff’s medical expert”).
The medical records reflect that Hem-o-Lok clips were used during the plaintiff’s surgery. The plaintiff’s medical expert stated in his opinion letter that the Weck Hem-o-Lok ligating clip is a nonabsorbable polymer clip with a lock engagement feature that is used during open or minimally invasive surgeries to permanently close bleeding vessels or tissue structures. With regard to robot assisted and laparoscopic radical prostatectomies, the Weck clips are used to control the lateral pedicles.
After the plaintiff’s 2012 surgery and continuing into 2014, the plaintiff suffered from abdominal pain, incontinence, infection, and other problems. In February, 2014, a cystoscopy revealed that the plaintiff had a large bladder stone. The subsequent surgery to remove the stone led to the discovery of a Weck Hem-o-Lok clip within it. The plaintiff’s medical expert opined that the clip had been inserted during the prostatectomy performed by the defendants surgeons, traveled to the plaintiff’s bladder when the bladder neck was open during that procedure, and that the clip had not been located or retrieved prior to closure.
The plaintiff’s medical expert opined that the defendant surgeons had breached the standard of care when they failed to properly apply the clip, recognize and appreciate the loose clip, actively search for the clip, locate the clip in the plaintiff’s bladder, and retrieve the clip during surgery prior to closing the bladder neck, which led to a Hem-o-Lok clip being left behind in the plaintiff’s bladder that was undiagnosed for approximately eighteen months resulting in pain, infection, stone formation, worsening incontinence and the need for otherwise unnecessary treatment including surgery to remove the stone and clip.
The Massachusetts Appeals Court stated that a factually based statement by a qualified expert, without more, is sufficient to meet the tribunal standard, such as in the case before it. The Massachusetts Appeals Court therefore vacated the judgment dismissing the plaintiff’s claims against the defendant surgeons and remanded the case to the trial court where the findings of the tribunal are to be replaced by the decision of the Massachusetts Appeals Court and a determination 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 Chandler v. Chang, 16-P-1626
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