Opinion
16-P-627
03-02-2017
Carolyn Daly BLACK & another v. Thomas Francis DELANEY& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff Carolyn Daly Black brought a medical malpractice action against Massachusetts General Hospital (MGH) and Dr. Thomas Francis DeLaney, a radiation oncologist at MGH who prescribed proton beam radiation therapy to treat her desmoid tumors. The plaintiff was subsequently diagnosed with lymphedema and radiation fibrosis syndrome. A medical malpractice tribunal determined that the plaintiff's offer of proof failed to "raise a legitimate question of liability appropriate for judicial inquiry" and dismissed the claims. G. L. c. 231, § 60B. The plaintiff timely appealed. For the reasons below, we vacate the dismissal.
After the tribunal's determination, the plaintiff elected not to post the statutory bond. The case against both defendants was dismissed and final judgment entered.
A plaintiff's offer of proof as to negligence will prevail before a tribunal if she (1) shows that the defendant is a provider of health care as defined in § 60B ; (2) demonstrates that the health care provider did not conform to good medical practice; and (3) establishes resulting damage. Saunders v. Ready , 68 Mass. App. Ct. 403, 403-404 (2007). In reviewing the tribunal's determination, we apply a directed verdict standard and ask whether, from any of the evidence in the offer of proof, "any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Joudrey v. Nashoba Community Hosp., Inc ., 32 Mass. App. Ct. 974, 975 (1992), quoting from Glicklich v. Spievack , 16 Mass. App. Ct. 488, 489-490 (1983). Here, the sole issues on appeal are whether the offer of proof sufficiently shows that Dr. DeLaney's treatment of the plaintiff did not conform to good medical practice, and causation.
The plaintiff's offer of proof consists of certain of the plaintiff's medical records and an opinion letter from Dr. Ron Allison, a board certified radiation oncologist in North Carolina.
The records are from Massachusetts General Hospital, Memorial Sloan Kettering Cancer Center in New York, and University of California, San Francisco, Helen Diller Family Comprehensive Cancer Center, Orthopedic Oncology.
In his opinion letter, Dr. Allison alleges that Dr. DeLaney deviated from the standard of care when he treated the plaintiff's tumors with the "unusual therapy" of proton beam radiation. Treating patients with new or uncommon therapies does not by itself constitute a deviation from the standard of care. However, Dr. Allison opines that under the circumstances, Dr. DeLaney's choice of therapy was a deviation due to "such a rare and large tumor as the one in [the plaintiff's] thigh and calf" and the dosimetric uncertainty associated with the therapy. Dr. Allison concludes that "this dosimetric uncertainty likely led in large part to radiation over-dosage to the leg which presented clinically as the very severe side effects of fibrosis and edema as seen in this case."
Dr. Allison opines that Dr. DeLaney further deviated from the standard of care when he failed to implement an appropriate follow-up protocol for the plaintiff. Specifically, due to "the size and unusual nature of the tumor" as well as the "rare treatment" and "[the plaintiff's] previous history of chemotherapy ... a more aggressive follow-up should have been instituted given the increased risk of more intense morbidity." According to Dr. Allison, Dr. DeLaney's decision to schedule one of the plaintiff's follow-up visits for six months later "was far too long, as it did not allow for early detection and treatment of side effects from proton treatment." The delay in detection and treatment of side effects, Dr. Allison concludes, "more probably than not prevented any chance of successful morbidity reduction and allowed severe and permanent disability to occur."
The defendants argue that when the plaintiff returned well before the six month follow-up due to complaints of leg swelling, Dr. DeLaney addressed these complaints, including prescribing compression socks and recommending she establish care for closer follow-up in New York, where she now lived. However, Dr. Allison opined that Dr. DeLaney "should have been more aggressive in addressing the lymphedema that had developed.... Instead, he again set her up for a six month follow-up." Dr. Allison was not required to opine on exactly what alternative measures should have been taken, only "that the defendant negligently failed to act and that the plaintiff was harmed as a result." Mataitis v. St. Goar , 416 Mass. 325, 327 (1993).
The defendants contend that Dr. Allison's opinion letter was insufficient because it was speculative and conclusory. We disagree. Although an offer of proof "must comprise more than mere conclusory allegations," Cooper v. Cooper-Ciccarelli , 77 Mass. App. Ct. 86, 91 (2010), an expert is not required to "state his opinion as to [a defendant's] perceived deficiencies in any particular form or by use of any magic words." Lambley v. Kameny , 43 Mass. App. Ct. 277, 287 (1997). It is sufficient if the "clear import" of the expert's opinion is that a defendant's actions "fell below the requisite standard of care and his medical judgment was mistaken." Ibid . To the extent the defendants attack the weight and credibility of the opinion letter, such an argument is improper at this stage because the tribunal "may not examine the weight or credibility of the evidence." Cooper , supra . In the opinion letter here, Dr. Allison, a qualified expert, clearly identifies the ways he believes Dr. DeLaney's treatment fell below the appropriate standard of care and cites adequate facts from the plaintiff's medical record in support. See Booth v. Silva , 36 Mass. App. Ct. 16, 21 (1994) ("[A] factually based statement by a qualified expert, without more, is sufficient to meet the tribunal standard").
For example, the defendants cite Dr. Allison's apparent inexperience with proton beam radiation therapy as potentially limiting his ability to opine on Dr. DeLaney's choice of treatment. It is evident from the record that the tribunal's medical member was concerned with this, as well. However, "[t]he standard for admission of expert testimony before a medical malpractice tribunal is extremely lenient, ... [and] the extent of [an expert's] training and experience would bear only on the weight that should be given to his testimony, and not its admissibility." Blake v. Avedikian , 412 Mass. 481, 482-483 (1992).
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As to causation, "[n]ot a great deal is required to fend off a directed verdict on the issue of causation. It is enough to adduce evidence that there is a greater likelihood or probability that the harm to the plaintiff flowed from conduct for which the defendant was responsible." Joudrey , 32 Mass. App. Ct. at 976. Furthermore, "[t]he line between impermissible speculation and permissible inference is not a clearly marked, bright line. Rather, it is one that must turn on an informed judgment of the reasonableness of the inference drawn." Saunders , 68 Mass. App. Ct. at 406.
In evaluating Dr. Allison's analysis along with the remainder of the offer of proof, we cannot, at this early stage, discern whether an inference of negligence is unreasonable. "It may transpire that, at the trial stage, [the expert's opinion] will be shown to be greatly oversimplified, but in our opinion that is not a conclusion that should be drawn on the record before the tribunal." Ibid .
Accordingly, the judgment dismissing the plaintiff's claims against the defendants is vacated. The matter is remanded to the Superior Court where the findings of the tribunal are to be replaced by the decision of this court and a determination shall enter that the offer of proof by the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. The plaintiff may proceed with her claims.
So ordered .
Vacated and remanded.