In its unpublished decision filed on January 7, 2019, the Commonwealth of Massachusetts Appeals Court (“Massachusetts Appellate Court”) reversed the Massachusetts medical malpractice tribunal’s adverse finding: “the finding of the tribunal is set aside, and a new tribunal finding shall enter in favor of the plaintiffs.”
Massachusetts Medical Malpractice Tribunals
Before a Massachusetts medical malpractice tribunal, a plaintiff’s offer of proof must show (1) the defendant is a provider of health care as defined in G. L. c. 231, § 60B; (2) the health care provider did not conform to good medical practice; and (3) resulting damage.
The sufficiency of an offer of proof is tested under the familiar directed verdict standard: the tribunal must not only consider the evidence contained in the offer of proof in the light most favorable to the plaintiff, but also draw all reasonable inferences in the plaintiff’s favor and reject the temptation to draw any unfavorable inferences.
Not a great deal is required to fend off a directed verdict on the issue of causation: it is enough to adduce evidence that there is a greater likelihood or probability that the harm to the plaintiff flowed from conduct for which the defendant was responsible. The offer of proof must be given an “indulgent reading.””
In the case the Massachusetts Appellate Court was deciding, the plaintiffs’ decedent was admitted to the defendant nursing home for rehabilitation after a hospital stay. The 87-year-old decedent was placed in a room with a roommate suffering from a Clostridium Difficile (C. Diff) infection. The defendant nursing home neither informed the decedent’s family members about the infection nor advised them to follow any infection protocols. During her frequent visits, the decedent’s daughter never observed the staff use gowns or gloves. On September 24, 2013, twelve days after the decedent’s admission, the defendant nursing home transferred him to another room.
On October 15, 2013, despite the decedent’s continuing symptoms that were consistent with a C. Diff infection, the defendant nursing home discharged him to an assisted living facility. The following day, the decedent was transferred to a hospital emergency room for his ongoing loose bowel movements. He was admitted and subsequently discharged on October 18, 2013. On October 22, 2013, the decedent was admitted to another hospital where he tested positive for C. Diff. A CT scan of his abdomen and pelvis revealed the swelling of the entire wall of his colon, suggestive of colonic ischemia. The decedent was discharged on October 29, 2013, and died two days later while in hospice care. His death certificate listed colitis as one of the “significant conditions contributing to [his] death.”
The daughter subsequently filed a complaint with the Division of Health Care Quality of the Department of Public Health (DPH). After investigation, the DPH validated the daughter’s claim that the decedent received “poor quality of care” at the defendant nursing home.
The family’s medical malpractice complaint alleged that the defendant nursing home was negligent for having failed to diagnose and to treat the decedent while he was a patient. The plaintiffs’ expert opined that (1) the decedent exhibited a number of symptoms that, combined with his exposure to C. Diff and risk factors (antibiotic use, prolonged hospital stay, advanced age, and co-morbid illnesses including his renal failure) should have heightened suspicion for C-Diff; (2) the standard of care in these circumstances required that he be given appropriate and prompt diagnostic testing for C-Diff; (3) once the decedent’s white blood cell count became elevated, the concern for the cause of the infection should have been heightened; and (4) despite a clear deterioration in his condition, repeated complaints of soft and/or loose stools, nausea and chills, and laboratory studies indicative of infection, the staff did nothing to diagnose and treat his condition.
The plaintiffs’ expert further opined, to a reasonable degree of medical certainty, that the failure of the defendant nursing home staff to diagnose C. Diff colitis allowed it to progress to the point where significant damage was done to the decedent’s colon, and that the untreated colitis was a substantial contributing cause of the decedent’s death.
The Massachusetts Appellate Court stated that in formulating his opinion, the plaintiffs’ expert did not rely on facts or assumptions that were contradicted by the record: his opinion is based on specific facts that are firmly rooted in the evidence. The plaintiffs were not required to include the emergency room records in their offer of proof or to explain why they had been omitted. Nor were they required to exclude all other possible causes of the harm suffered by the decedent.
The Massachusetts Appellate Court stated that the plaintiffs’ expert indicated in his affidavit that he had reviewed the emergency room records but did not mention them further. The Massachusetts Appellate Court held that his failure to address the emergency room records goes to the weight and credibility of his opinion, matters beyond the scope of the Massachusetts medical malpractice tribunal’s authority. A fair inference, moreover, is that nothing in the emergency room records was important to his opinion that the defendant nursing home deviated from the appropriate standard of care by failing to test for C. Diff and to diagnose the decedent’s condition, and that nothing in the emergency room records required him to change his analysis.
Thus, the Massachusetts Appellate Court held: “We conclude that the plaintiffs’ offer of proof adequately established the existence of a causal connection between [the defendant nursing home’s] negligence and the harm suffered by [the decedent]. Any contrary evidence on medical causation should be assessed at a later stage of the proceedings.”
Source Moalli v. Genesis Healthcare, LLC, 18-P-0400.
If you or a loved one suffered injuries (or worse) while a resident of a nursing home in Massachusetts or in another U.S. state due to nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a nursing home claim lawyer in Massachusetts or a nursing home claim lawyer in your state who may investigate your nursing home claim for you and file a nursing home claim on your behalf or behalf of your loved one, if appropriate.
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