Massashusetts Appellate Court Reverses Summary Judgment Against Pro Se Medical Malpractice Plaintiff

The Commonwealth of Massachusetts Appeals Court stated in its unpublished Memorandum and Order entered on September 1, 2021: “Representing himself, Cook pursued a range of claims implicating the adequacy of his informed consent, and possible malpractice or misconduct in both the administration of the injection and in Iacono’s post-injection conduct. A Superior Court judge dismissed most of these claims at summary judgment, but allowed Cook to proceed to a jury trial on an informed consent claim. He lost at trial. Now, his appeal focuses mainly on the summary judgment decision, but Cook touches on the trial verdict as well. We conclude that the motion judge erroneously dismissed Cook’s malpractice claims but otherwise affirm the judgments.”

Underlying Facts

Robert Cook (Cook) went to Caritas Good Samaritan Hospital (Caritas) in the late fall of 2007, complaining of severe lower-back pain. Believing that Cook’s pain might be originating in either or both of his lower spine or left hip, the doctors treating Cook decided to administer an injection of Lidocaine, Marcaine, and a steroid called Depo-Medrol into his left groin. The injection was expected to give him relief if his hip was in fact the source of his pain.

One of the doctors (Iacono) injected Cook’s groin on December 2, 2007. Cook later reported to other treatment providers that he felt a sharp pain immediately upon the needle entering his hip, and that the injection did not give him meaningful pain relief. However, according to notes from the team involved in administering the injection, the injection was performed without incident, and provided Cook substantial pain relief. Those notes also reflect that the pain began returning a few hours later, and that Cook was feeling some numbness near his left knee.

On November 29, 2010, Cook filed his civil lawsuit pro se that included battery, informed consent, and negligence claims, among others. In 2014, Cook’s malpractice claim against Iacono went before a tribunal pursuant to G. L. c. 231, § 60B. Cook’s offer of proof included an expert letter from Dr. Jonathan Hirsch (2013 Hirsch Letter) that, in relevant part, stated that in the absence of adequate documentation of the injection, “it is reasonable to conclude that Dr. Iacono severely deviated from the accepted standards of medical care regarding his treatment of” Cook. The tribunal concluded that Cook had raised a legitimate question of liability as to Iacono.
In 2015, Iacono moved for summary judgment. Cook’s oppositions included another letter from Hirsch (2015 Hirsch Letter), concluding that the evidence suggested that the injection had “directly caus[ed] a permanent nerve injury to the patient.” The 2015 Hirsch letter also explained that Iacono appeared to have been negligent in numerous ways, such as having used improper fluoroscopic techniques and having kept inadequate records.
The motion judge dismissed almost all of Cook’s claims, but allowed one — an informed consent claim — to proceed to trial. After a six-day trial, the jury returned a special verdict that Iacono did not “fail to disclose to Robert Cook in a reasonable manner sufficient information to enable him to make an informed judgment in order to give or to withhold consent to a medical procedure or a particular course of care and treatment.” The special verdict did not include any findings on whether Iacono had in fact struck Cook’s femoral nerve.
Massachusetts Appellate Court Opinion
The Massachusetts Appellate Court stated: “Viewing the evidence in the light most favorable to Cook, and drawing all reasonable inferences in his favor, a reasonable fact finder could have concluded, based on the summary judgment record, that the injection struck Cook’s nerve, thereby injuring him. The 2015 Hirsch letter reflects that Cook “complained of severe pain and paresthesias immediately upon the needle entering the left groin which would indicate a direct needle placement into the nerve,” and that this and other evidence was consistent with the injection having “directly caused a permanent nerve injury to the patient.” The letter relied on Cook’s reports to Hirsch of his own symptoms, as well as medical records from Cook’s other providers. One of those providers concluded that Cook’s symptoms were “suggestive of a potential injury to his femoral nerve”; another “fe[lt] there was no question that the patient’s symptoms [were] due to an injury to the medial femoral cutaneous nerve.” For purposes of summary judgment, such evidence created a genuine issue of fact concerning whether the injection caused Cook’s alleged injuries.”
The Massachusetts Appellate Court held: “Thus, on the record before us, we conclude that genuinely disputed issues of material fact precluded summary judgment on Cook’s malpractice claims as to both Iacono and Caritas. We leave to the judge’s sound discretion whether after remand the appropriate next step should be renewed motions for summary judgment or trial.”
Source Cook v. Iacono, 20-P-1229.
If you or a loved one may have been injured (or worse) as a result of medical negligence in Massachusetts or in another U.S. state, you should promptly find a Massachusetts medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Monday, September 27th, 2021 at 5:21 am. Both comments and pings are currently closed.


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