November 27, 2020

The Commonwealth of Massachusetts Appeals Court (“Massachusetts Appellate Court”) held in its Memorandum and Opinion entered on November 3, 2020: “A  medical malpractice tribunal concluded that the plaintiff’s offer of proof was insufficient to present a triable claim of malpractice against any of the defendants, and a judgment of dismissal entered in the Superior Court. On the plaintiff’s appeal, we reverse.”

Medical Malpractice Tribunal

“A plaintiff’s offer of proof shall prevail before a medical malpractice tribunal (1) if the defendant is a health care provider as defined in G. L. c. 231, § 60B, . . . ‘(2) if there is evidence that the [health care provider’s] performance did not conform to good medical practice, and (3) if damage resulted therefrom.'” The tribunal must apply a directed verdict standard to the evidence presented by the plaintiff, with some allowance to be made for the nascent stage of the litigation. If any one of the plaintiff’s theories meets this standard, the offer survives the statutory screening test. The tribunal should give consideration to the proffered opinion of an expert if the offer of proof is sufficient to show that a trial judge in his discretion might properly rule that the qualifications of the witness are sufficient.
In the present case,  the plaintiff’s expert, Dr. Michael Stanley Drew (“Dr. Drew”), stated that the decedent, Richard Lacorazza, suffered complete bowel infarction and death because of the “significant” delay in the diagnosis and treatment of his ischemic bowel. In Dr. Drew’s opinion, to a reasonable degree of medical certainty, each of the defendants failed to conform to good medical practice in several respects. As for Hiles, Dr. Patel, and Dr. Pham, Dr. Drew opined that they deviated from the standard of care by failing to do the following: recognize and appreciate signs and symptoms of an ongoing acute abdominal process; “offer, order, and/or perform” a nasogastric tube (NGT) insertion; and order a surgical or gastroenterology consult. As for Darling and Dr. Quadri, Dr. Drew opined that they deviated from the standard of care by failing to assess Lacorazza at bedside after being informed of his worsening condition, and by failing to order a transfer to the intensive care unit (ICU) after it was clear Lacorazza needed closer monitoring.
Dr. Drew also faulted Dr. Quadri for failing to order an immediate central line or PICC placement. Dr. Drew faulted the care and treatment provided by Dr. Fernandez because she failed to recognize and appreciate the signs and symptoms of an acute abdominal process (as well as the CT scan findings reporting colonic distension and pneumatosis as consistent with such a process), and because she failed to “offer, order, and/or perform” an NGT insertion. Dr. Drew specifically opined, to a reasonable degree of medical certainty, that Lacorazza’s premature and preventable death was the direct result of the substandard care rendered to him by the defendants. In Dr. Drew’s professional opinion, if the defendants had provided care and treatment consistent with the standard of care, Lacorazza’s acute abdominal process would have been diagnosed and treated as early as January 16 or 17, preventing, more likely than not, Lacorazza’s bowel infarction, cardiac arrest, and death on January 18.

The Massachusetts Appellate Court stated: “Dr. Drew’s credentials and extensive experience sufficiently established his familiarity with the standard of care owed by the defendants … Though the defendants may have “subspecialties,” they indisputably remain either physician assistants with internal medicine backgrounds or board-certified internal medicine physicians. Dr. Drew was qualified to render an opinion regarding the care and treatment they provided … To the extent the defendants contend that Dr. Drew failed to address their specific roles, Dr. Drew acknowledged each of the defendants’ different titles, roles, and many of their specialties, in his detailed chronology of the medical facts and events upon which his opinion was based … Dr. Drew’s opinions were supported by information in the hospital records before the tribunal … Several signs and symptoms of an acute bowel process were in fact documented not only by the nurses, but also by the defendants themselves (though they may have attributed them to another cause).

The Massachusetts Appellate Court held: “We are unpersuaded by the defendants’ contention that Dr. Drew’s causation opinions were speculative, conjectural, and conclusory … The opinions instead were grounded on information in the hospital records showing, if substantiated, a classic course of worsening ischemic bowel that was missed by the defendants. Dr. Drew essentially found that if the defendants had timely recognized the potential danger, performed the appropriate tests, called in an appropriate expert, or sent Lacorazza to the ICU where he belonged for closer monitoring, Lacorazza’s ischemic bowel would have been diagnosed earlier, more likely than not, before it progressed to an irreversible bowel infarction, cardiac arrest, and death. This opinion connecting deviations from the standard of care and harm was sufficient at the tribunal stage … 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 plaintiff is not required to show that the physician’s negligence is the exact cause of the harm nor is the plaintiff required to exclude all possibility that the harm would not have occurred absent the physician’s negligence.”

The Massachusetts Appellate Court concluded: “The judgment of dismissal is vacated. The findings and decision of the medical malpractice tribunal in favor of the defendants are vacated and new findings and a decision shall be entered for the plaintiff stating that the evidence presented, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. The case is remanded to the Superior Court for further proceedings.”

Source Lacorazza v. Pham, 19-P-1829.

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