Opinion
18-P-1401
05-17-2019
ADAM L. KEENEY v. JONATHAN M. FALLON & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 23, 2012, plaintiff Adam L. Keeney sustained an injury to his lower leg from a wheelbarrow. The next day, one of the defendants, Dr. Jonathan M. Fallon, performed an emergency fasciotomy to treat compartment syndrome resulting from the injury. Thereafter, the plaintiff alleged that the wound developed a MRSA infection which, according to the complaint, took nine months to heal. The complaint further alleged that Dr. Fallon was negligent in failing to diagnose and treat the plaintiff's infection, and that Dr. Fallon's employer, defendant Hampshire Orthopedics & Sports Medicine, Inc., negligently failed to supervise, direct, and control Dr. Fallon.
Methicillin-resistant staphylococcus aureus.
The defendants moved for summary judgment on the basis that the plaintiff had failed to identify an expert who would testify that Dr. Fallon breached the applicable standard of care when treating the plaintiff. See Mass. R. Civ. P. 56, 365 Mass. 824 (1974). The plaintiff opposed the motion, arguing that expert opinion was unnecessary because the breach of the standard of care was obvious from photographs of the wound that were part of the summary judgment record. A Superior Court judge allowed summary judgment for the defendants reasoning that "this is not a case within that 'class of exceptional cases where a breach of the duty owed by the physician to his patient may be ascertained without the assistance of expert medical testimony.' Haggerty v. McCarthy, 344 Mass. 136, 145 (1962) (Spiegel, J., dissenting)." We agree and affirm the order of summary judgment for the defendants.
Discussion. Summary judgment is appropriate where "all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "In reviewing a grant of summary judgment, 'we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.'" Pugsley v. Police Dept. of Boston, 472 Mass. 367, 371- 372 (2015), quoting Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014), S.C., 473 Mass. 672 (2016).
It is well settled that, "[t]o prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant physician breached that standard, and that this breach caused the patient's harm." Palandjian v. Foster, 446 Mass. 100, 104 (2006). "Establishing the applicable standard of care typically requires expert testimony." Id. at 105-106. "Only where professional negligence is so gross or obvious that jurors can rely on their common knowledge to recognize or infer negligence may the case be made without expert testimony." Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 403 (2003).
Here, the plaintiff alleges that Dr. Fallon negligently failed to identify and treat his MRSA infection. However, he offers nothing from which a jury could find that an average qualified surgeon in Dr. Fallon's position would have pursued a different course of treatment. Palanjian, 446 Mass. at 104. The plaintiff relies, in part, on a letter authored by Laurence D. Cohen, who opined that the plaintiff's subjective complaints regarding postoperative pain and loss of mobility were "real and legitimate." Dr. Cohen offered no opinion on the applicable standard of care or Dr. Fallon's alleged breach of that standard. In short, we agree that the development and treatment of a MRSA infection "is not a matter within the common knowledge of the ordinary lay person," Herbert A. Sullivan, Inc., 439 Mass. at 402-403, and that expert testimony is required to establish the applicable standard of care and a breach of that standard which caused harm.
Because the defendants have demonstrated that, based upon the summary judgment record, the plaintiff has no reasonable expectation of proving (1) the applicable standard of care, or (2) that Dr. Fallon breached that standard, summary judgment properly entered in favor of the defendants. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Judgment affirmed.
By the Court (Wolohojian, Kinder & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 17, 2019.