Opinion
No. 12–P–1720.
2013-12-18
BRUCE GORHAM v. JORDAN HOSPITAL & another.
By the Court (RUBIN, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff in this case appeals from a judgment dismissing his medical malpractice action as a result of his failure to post a bond, which was made necessary by a medical malpractice tribunal determination that there was insufficient evidence to raise a legitimate question as to liability appropriate for judicial inquiry. The plaintiff challenges that determination.
Although the medical records do not indicate that the plaintiff reported a hand injury to the defendant doctor, the plaintiff's affidavit that asserts that he did so might well suffice to raise a genuine issue of fact with respect to that question. Nonetheless, the plaintiff's claim founders on the weaknesses in the opinion letter submitted to the tribunal by the plaintiff. The letter by plaintiff's expert, which appears to have been imprecisely cut and pasted from some prior case, states that its author, board certified in general and thoracic surgery, has “treated and examined numerous patients complaining of abdominal pain,” which is not the medical issue that forms the basis of this action. It also states, “I am familiar with the standard of care applicable to patients such as Denise Southworth in the Commonwealth during the year 2009.” The letter provides no explanation as to who Denise Southworth is, or what standard of care might have been applicable to her. In any event, the premise of the expert's opinion letter is that “medical records and [the plaintiff's] affidavit both clearly indicate that he had fallen and was suffering pain in his right hand. The medical records also establish that he had a laceration of his right hand.” The expert continues, stating that “[u]nder these circumstances the standard of medical care as it exists in Massachusetts in 2009, called for x-rays to be taken. This was not done and [the plaintiff] was discharged from Jordan Hospital with a fractured hand that required immediate surgery.” As we indicated above, the medical records do not indicate that the plaintiff reported suffering pain in his right hand, although his affidavit does so state. More significantly, though, neither the medical records nor any other evidence supports the statement that the plaintiff had a laceration of his right hand. The expert does not state what the standard of medical care would have required under circumstances where an individual described pain but had no such laceration. Consequently, the plaintiff has not demonstrated that there was sufficient evidence before the tribunal to require a determination that the plaintiff had presented a legitimate question of liability appropriate for judicial inquiry.
Judgment affirmed.