Medical Malpractice Attorneys Entitled To Summary Judgment: In its opinion filed on March 28, 2023, a Massachusetts Appeals Court held that the medical malpractice lawyers who negotiated a $6 million medical malpractice settlement on behalf of a minor were entitled to summary judgment in a legal malpractice case subsequently filed against them by the minor’s parents, who claimed that the settlement was insufficient because the lawyers failed to competently develop evidence of damages of the lifetime costs of the child’s medical treatments and prosthetics.
Background Facts
The child was admitted to UMass Memorial Medical Center for a fractured wrist at the age of five. Due to complications arising from the child’s treatment, the child’s right arm was amputated below the elbow. In 2012, the parents (on behalf of the minor child) sued nine physicians associated with the hospital as well as the Commonwealth (hospital defendants), alleging claims of professional negligence. The parents also asserted a loss of consortium claim on their own behalf.
The parties engaged in mediation and settlement negotiations, and in mid-August 2015, the hospital defendants’
insurer made a settlement offer of $6 million. After much discussion with their attorneys, and after a meeting with the Superior Court session judge (settlement judge), the parents directed and authorized their Massachusetts medical malpractice lawyers, in writing, to accept the settlement offer. On August 27, 2015, their lawyers advised the hospital defendants, also in writing, that the offer was accepted.
The parents had second thoughts about the amount of the settlement and attempted to undo the settlement. Their efforts were unsuccessful.
Just short of three years later, the parents commenced an attorney malpractice lawsuit against their lawyers, alleging (1) that the settlement amount was inadequate in that it did not consider the child’s future need for and costs of prosthetics, and (2) that the defendant lawyers had caused them to settle under duress, by informing them that the hospital defendants were considering seeking appointment of a guardian ad litem.
The defendant lawyers filed a motion for summary judgment arguing, in part, that the plaintiffs failed to put forward competent evidence of damages — that is, the plaintiffs failed to present admissible evidence that they would have obtained a settlement or recovery in excess of $6 million had the defendant lawyers performed to professional standards.
The only evidence of damages the plaintiffs produced was the purported expert disclosure of David Oliveira, an experienced medical malpractice attorney. Oliveira’s supplemental affidavit stated that he researched “verdicts and settlements in the Commonwealth for a variety of cases, including medical malpractice cases involving amputations” but did not identify any specific settlements or verdicts, nor provide a methodology for how those settlements and verdicts supported his $10 million opinion.
The Massachusetts Appeals Court stated: “The defendants are correct that the plaintiffs’ damages submissions were insufficient to survive summary judgment. Our conclusion is rooted in rule 56 (e), which provides that affidavits supporting or opposing summary judgment “shall set forth such facts as would be admissible in evidence” … the plaintiffs’ submission did not “set forth such facts as would be admissible in evidence,” not just as a matter of form, but as a matter of substance.”
“A proponent of expert testimony must show (among other things) both (1) that the proposed expert testimony is based upon a reliable methodology, and (2) that that methodology has been reliably applied to the facts of the
case … Here Oliveira’s expert disclosure and supplemental affidavit failed to meet the basic standard for admissibility under the case law, because they did not set forth how Oliveira had applied a reliable methodology to the facts of this case. Put differently, Oliveira’s disclosure and affidavit seem to be saying that for a medical malpractice claim of this type, with injuries of this type, previous settlements and verdicts demonstrate a likely value of $10 million or more. Assuming that Oliveira described a valid methodology for valuing cases, however — that is, analyzing verdicts and settlements of cases with comparable facts — that methodology still must be reliably applied.”
“And here, nothing in either Oliveira’s expert disclosure or his supplemental affidavit describes how his methodology was applied. He does not explain, for example, which verdicts and settlements he reviewed, what the amounts of those verdicts and settlements were, or why those upon which he based his opinion were apt comparators … Simply setting forth an expert’s experience, and that he did some research, is not sufficient when the expert’s application of his methodology to the facts is not disclosed.”
The Massachusetts Appeals Court held: “Because the plaintiffs did not proffer admissible evidence on damages,
summary judgment should have entered for the defendants.”
Source Abdulky v. Lubin & Meyer, P.C., No. 22-P-498.
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