The Commonwealth of Massachusetts Appeals Court (“Massachusetts Appellate Court”) Memorandum And Order Pursuant To Rule 23 dated June 2, 2023 held: “The findings of the tribunal are to be replaced by the decision of this court that the offer of proof of the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. The judgment of dismissal as to the defendants Erazo and O’Hara is vacated, and the plaintiff may proceed with her claims.”
The Underlying Facts
Elizabeth Owens was hospitalized following hip surgery. Owens had requested assistance in getting out of bed and going to the bathroom. The nurse on duty called for the P.C.A. to assist Owens. As Owens got out of bed, she slipped, fell, and reinjured (fractured) her right hip, requiring revision surgery. The fall allegedly occurred because P.C.A. Agustin unhooked an IV from a port in Owens’s left arm and put a walker next to her bed. Owens sat up and began to pull herself up, holding onto the walker. Mr. Agustin was not using a guard belt, holding the walker, or touching Owens to brace her. As Owens stood up, her feet slipped on the wet floor. The floor was wet because the IV had leaked after being unhooked.
The Massachusetts medical malpractice tribunal found in favor of the defendants, and the defendants subsequently argued that the tribunal’s decision was correct because the plaintiff’s expert’s opinion was based on speculation and conjecture; specifically, that Erazo did not properly assess risk or communicate with P.C.A. Agustin, and that O’Hara did not communicate with Agustin.
The Massachusetts Appellate Court stated: “This argument misperceives the standard of review of the tribunal …”[T]he plaintiff’s offer of proof raises a legitimate question of liability appropriate for judicial inquiry if ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff'” … [T]he standard for considering expert testimony is an extremely lenient one, and . . . the evidence, including all permissible inferences therefrom, is to be taken in the light most favorable to the plaintiff”.”
“Given this “lenient” standard of proof at the tribunal stage, the defendants’ call for greater specificity is misplaced … the level and substance of communication within Owens’s health care team is in the hands of the defendants; Owens cannot be faulted for failing to produce it. Moreover, the evidence before the tribunal indicated varying and disparate views of Owens’s fall risk, even after her fall, suggesting (as the expert opined) a lack of coordination and consistency … It is a fair inference, viewing the proffer in the light most favorable to Owens, that one or more professionals underestimated the fall risk, or failed to communicate the fall risk to others, most particularly the P.C.A. It is an equally permissible inference that there was a lack of consistency and communication regarding O’Hara’s recommendations regarding transfers. The P.C.A. left Owens physically unattended, contrary to O’Hara’s directives. While the evidence after discovery may or may not paint a different picture, for purposes of the tribunal, this chain of events, coupled with the expert’s opinion, viewed in the light most favorable to the plaintiff, was “sufficient to raise a legitimate question of liability, with proper evidentiary substantiation to follow” … It is not for the tribunal to “examine the weight or credibility of the evidence.””
Owens v. Erazo, 22-P-1204.
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