On April 11, 2016, the Commonwealth of Massachusetts Appeals Court (“Appellate Court”) vacated a medical malpractice tribunal’s dismissal of a kidney transplant medical malpractice lawsuit from the recipient regarding an infected kidney that was transplanted into her, holding 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 Underlying Facts
The plaintiff underwent two kidney transplant procedures. Shortly after the plaintiff’s August 28, 2008 kidney transplant, it became apparent that the transplanted kidney was infected, which required that it be removed on September 10, 2008. On March 11, 2010, the plaintiff received a second kidney transplant at the same hospital, performed by the same surgeons, during which the plaintiff alleges that “[s]omething went wrong” and she was deprived of oxygen for a period of time during the procedure, resulting in brain damage.
On December 23, 2011, the plaintiff brought her first medical malpractice action against the defendants, alleging negligence in the performance of her first kidney transplant. On March 5, 2013, the plaintiff brought her second medical malpractice action against the defendants, alleging negligence regarding her second kidney transplant. The two Massachusetts medical malpractice cases were consolidated.
As required by Massachusetts medical malpractice law, a medical malpractice tribunal was convened on May 9, 2014 regarding the plaintiff’s two medical malpractice cases. The plaintiff’s medical malpractice lawyer did not present any expert opinion but contended, nonetheless, that the facts met the statutory criteria of “something that’s worthy of investigation,” alleging that the medical records produced by the defendants contained no information concerning the screening of the first kidney. The medical malpractice tribunal found in favor of the defendants in both medical malpractice cases and the plaintiff appealed.
The Appellate Court stated that the plaintiff did not proffer any expert testimony or any other evidence from which a reasonable inference could be drawn in favor of the plaintiff with respect to the second procedure, and therefore upheld the dismissal of the medical malpractice case regarding the second kidney transplant because an expert’s report was necessary to explain how the defendants’ conduct failed to conform with good medical practice.
With regard to the plaintiff’s medical malpractice case involving the first kidney transplant, the Appellate Court stated, “it seems sufficiently obvious to us that implanting an infected kidney is not good medical practice.” The Appellate Court noted that the source of the kidney and the efforts taken to screen it were presently unknown, and further stated that based on common knowledge and experience, a fact finder could reasonably infer that absent negligence on the part of the hospital or the surgeons, the plaintiff would not have received an infected kidney. The Appellate Court held that it was “bound to conclude that the plaintiff’s offer of proof ‘is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.'”
Source Calhoun v. Boston Medical Center & others, 15-p-351.
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