On July 6, 2020, the decedent, a fifty-eight year old man, presented to the emergency department at Cape Cod Hospital (CCH) via ambulance because he was unable to use his left arm. He reported that he had fallen approximately two weeks prior and did not experience pain until one week afterward. Dr. Jeffrey Herbst examined the decedent and diagnosed him with rotator cuff tendinitis and a localized skin infection on his hand. After Herbst prescribed an antibiotic, the decedent was discharged from the emergency department with plans to follow up with his primary care provider at an upcoming appointment that week.
Four days later, on July 10, the decedent returned to CCH’s emergency department due to increased and worsening pain in his left hand and shoulder, with the antibiotic having failed to improve his condition. The decedent was examined by physician assistant Benjamin Hixon, who confirmed the presence of left shoulder pain and diagnosed the decedent with cellulitis of the left hand. After determining that no laboratory work was indicated and that no repeat imaging was necessary, Hixon discharged the decedent with prescriptions for different antibiotics. Although Dr. Kristen Liska was the attending physician during this visit to the CCH emergency department, Liska did not examine or treat the decedent.
With the decedent continuing to experience left shoulder pain in the ensuing days, his primary care physician referred
him for an orthopedic evaluation with Dr. John Willis, an orthopedic surgeon at Cape Cod Orthopedics and Sports Medicine, P.C. (Cape Cod Orthopedics), where he was seen on August 3. At the recommendation of an orthopedic physician, a left shoulder ultrasound was completed on August 7, revealing a large shoulder joint effusion. Following an aspiration and drainage from the left shoulder joint in the operating room, the decedent was diagnosed with left shoulder septic arthritis.
Postoperatively, although the decedent continued to be administered various antibiotics, his condition worsened.
Eventually, at 7:57 A.M. on August 8, the decedent suffered cardiac arrest and died. The causes of death noted on his death certificate were septic shock, acute septic arthritis of the left shoulder, metabolic acidosis, and acute-on-chronic renal failure.
A medical malpractice tribunal convened on January 5, 2024, to evaluate the evidence in the plaintiff’s offer of proof. After a hearing, the tribunal found that the plaintiff’s evidence failed to raise a legitimate question of liability appropriate for judicial inquiry as to Collins, but did raise a legitimate question of liability as to Liska, Bosco, and Hixon. A second tribunal found the evidence insufficient to raise a legitimate question of liability appropriate for judicial inquiry as to Willis and Cape Cod Orthopedics.
The plaintiff appealed, and the Massachusetts Supreme Judicial Court transferred the case from the Appeals Court.
General Laws c. 231, § 60B, provides in part: “Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth . . . and an attorney authorized to practice law in the commonwealth, at which hearing the plaintiff shall present an offer of proof and said tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result.”
A plaintiff will prevail before a medical malpractice tribunal if his or her offer of proof presents sufficient evidence that (1) the defendant is a health care provider as defined in § 60B, (2) the defendant’s performance did not conform to good medical practice, and (3) damage resulted therefrom (causation). The evidence presented by an offer of proof is viewed in the light most favorable to the plaintiff.
The Massachusetts Supreme Judicial Court stated in its November 17, 2025 Opinion: “According to Richman [plaintiff’s expert], Collins failed to promptly order additional imaging studies and blood work, administer certain antibiotics, admit the decedent for further treatment, and recognize the symptoms of septic arthritis or septic shock. These failures, he maintained, fell outside the accepted standard of care of a qualified nurse practitioner treating an emergency department patient in the decedent’s condition. Richman’s expert opinion, rooted in the evidence, was sufficient to meet the tribunal standard.”
With regard to causation, the Massachusetts Supreme Judicial Court stated: “In Richman’s opinion, credited at this stage as it must be, had Collins conformed to good medical practice when he saw the decedent on August 4, the decedent, more probably than not, would not have suffered deterioration from septic shock that resulted in his premature death … Given the nearly two-day gap between when Collins attended to the decedent and when doctors performed further imaging and blood work, the conclusion that the decedent’s septic arthritis would have been diagnosed and treated sooner — when it was still “amenable to cure” — had Collins conformed to the standard of care is not speculative if Richman’s opinion is properly credited, as it must be at this stage.”
“What’s more, it is difficult to reconcile the medical malpractice tribunal’s finding of sufficient evidence as to Bosco, the attending physician when the decedent was seen by Collins. As mentioned, there is no evidence in the record that
Bosco treated the decedent. Yet the plaintiff’s offer of proof lays out identical arguments regarding a failure to conform to good medical practice and causation for both Collins and Bosco.”
The Massachusetts Supreme Judicial Court concluded: “In sum, the plaintiff’s offer of proof provides more than
conclusory and speculative statements and, when viewing the evidence in the light most favorable to the plaintiff,
adequately shows a causal relationship between Collins’s negligence and the decedent’s harm … The tribunal’s apparent conclusion to the contrary is unsupported. Because the evidence presented in the plaintiff’s offer of proof, if properly substantiated, was sufficient to raise a legitimate question of liability appropriate for judicial inquiry, the judgment of dismissal as to Collins is vacated, and the plaintiff may proceed with her claims against him without posting a bond.”
Source Bennett v. Collins, SJC-13740.
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