The Massachusetts Appeals Court held in its March 11, 2019 opinion that “the offer of proof of the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability” with respect to the two medical malpractice defendant physicians in a case where the plaintiff’s decedent died after protracted, and then arrested, labor, an emergency bedside cesarean section, and a subsequent emergency bedside hysterectomy.
The plaintiff’s decedent was a healthy twenty-nine year old mother of two children when she went to the hospital on August 10, 2014 at thirty-eight and one-half weeks pregnant with her third child, complaining of being in labor. She died at the hospital twenty-five hours later from hemorrhagic shock, disseminated intravascular coagulation, and amniotic fluid embolism.
The decedent died because (a) the defendants failed to timely recognize that her condition required a cesarean section, and she “coded,” (b) the defendants failed to ensure, after performing an emergency bedside perimortem cesarean section, that her abdomen be left open to monitor for uterine bleeding and failed to place her in or near an operating room in case an emergency hysterectomy was also required, (c) the defendants failed thereafter to sufficiently monitor her and failed to recognize that her condition necessitated a hysterectomy until after she again “coded,” (d) the defendants waited too long to perform the emergency hysterectomy, and (e) the defendants performed the emergency hysterectomy in her bed and without proper medical tools (such as a scalpel) because of the delay in performing the procedure and because of the earlier failure to place her in or near an operating room.
The plaintiff’s Massachusetts medical malpractice wrongful death action was filed along with the plaintiff’s offer of proof that included a detailed expert opinion of a licensed physician board certified in obstetrics and gynecology and gynecological oncology, and medical records from the hospital, fetal monitoring strips, an autopsy report from Massachusetts General Hospital, and the decedent’s death certificate.
After a hearing, a Massachusetts medical malpractice tribunal found that the evidence did not raise a legitimate question of liability with respect to the two defendant physicians. The plaintiff appealed.
The Massachusetts Appeals Court stated that 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 is not to engage in weighing the evidence or determining credibility, and any factual dispute as to the meaning of the record is for the jury.
The Massachusetts Appeals Court stated that the task of the medical malpractice tribunal is a “narrow” one, in which the tribunal should simply examine the evidence proposed to be offered on behalf of the patient to determine whether that evidence, 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. The evidence presented by the offer of proof is viewed by a standard comparable to a motion for a directed verdict, that is, in a light most favorable to the plaintiff. That standard is whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff. A plaintiff’s offer of proof to the tribunal need not meet the full evidentiary burden of proof at trial; instead, the offer of proof, taken in the light most favorable to the plaintiff, need only be sufficient to raise a legitimate question of liability, with proper evidentiary substantiation to follow.
The Massachusetts Appeals Court further stated that the admission of expert opinion before the tribunal is not subject to the same strictures as are required for admission at trial. The tribunal may not refuse to accept an expert’s opinion unless the plaintiff’s offer of proof is so deficient that as a matter of law it would be improper for any judge to admit it. Extrinsic evidence is not required to substantiate the factual statements in an expert’s opinion, and a factually based statement by a qualified expert, without more, is sufficient to meet the tribunal standard.
In the case it was deciding, the Massachusetts Appeals Court held that a legitimate question of the defendants’ liability was raised by the opinion of the plaintiff’s qualified expert that the defendants deviated from the accepted standard of care and such deviations from the standard of care resulted in harm to the decedent, including her premature and preventable death.
Source Feliciano v. Attanucci, No. 17-P-1568.
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