Opinion
13-P-1935
11-03-2014
KAREN A. MORRISON, personal representative, v. JESUS SOSA & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff's appeal challenges the determination by a medical malpractice tribunal that the offer of proof was insufficient to raise a legitimate question of liability appropriate for judicial inquiry. Additionally, the plaintiff argues that the judge erred in dismissing the complaint for failure to file a bond pursuant to G. L. c. 231, § 60B. We vacate in part.
Background. On October 26, 2006, the plaintiff's decedent Brian Morrison (Morrison) was admitted to the defendant St. Anne's Hospital (St. Anne's) to receive a spinal cord lead and stimulator implant. The implant would provide relief from pain due to Morrison's left leg dystrophy. The surgery was performed by defendant Jesus Sosa, an attending physician at St. Anne's and an employee or member of defendant Prima Care, P.C. (Prima Care). In July of 2007, Morrison was again admitted to St. Anne's because the spinal cord stimulator and lead had become infected. On July 4, 2007, Sosa performed surgery to remove the infected stimulator and lead. In November, 2007, Morrison returned to St. Anne's complaining of persistent drainage from the surgical wound in his lumbar region. Dr. Sosa again performed surgery on Morrison and the wound was closed.
In a sworn affidavit, Morrison alleged that Sosa told him after the November, 2007, surgery that a plastic anchor belonging to the spinal cord stimulator had mistakenly been left inside his body during the July 4, 2007, surgery. Sosa purportedly stated that the anchor should have been removed at that time. Morrison averred that he was told that, because the plastic anchor was left inside his body, there would be a delay in inserting a new spinal stimulator and lead. The medical records do not mention a plastic anchor.
Morrison underwent the replacement procedure at St. Anne's on June 10, 2008.
Morrison filed with the medical malpractice tribunal an offer of proof including a letter from Dr. Padma Gulur, who opined that, "[w]hen an infection of hardware is considered, [the] standard of care would be to make every attempt to remove all infected components." Dr. Gulur further stated that, "if the infected anchor had been left behind, this would have been a deviation from the standard of care."
The medical malpractice tribunal concluded that Morrison had not satisfied his burden of providing sufficient evidence to raise a legitimate question of the defendants' liability appropriate for judicial inquiry. Accordingly, to proceed with the action Morrison was then required under G. L. c. 231, § 60B, to post timely bond in the sum of six thousand dollars secured by cash or its equivalent. On January 6, 2012, Morrison posted a surety bond for that sum. St. Anne's moved to strike the bond and a Superior Court judge allowed the motion, ruling that the surety bond did not comply with the statute's requirement of security by cash or equivalent. Morrison having posted no other bond in the thirty days allowed, the judge therefore dismissed the case. Morrison timely appealed.
Discussion. The duty of a medical malpractice tribunal is to determine whether the plaintiff's offer of proof "is sufficient to raise a legitimate question of liability appropriate for judicial inquiry." G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. "In order to raise such a question of liability, a medical malpractice plaintiff must show (1) the existence of a doctor or nurse-patient relationship, (2) that the performance of the doctor or nurse did not conform to good medical practice, and (3) that damage resulted therefrom." St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994). The first of these elements is undisputedly met here. We review the medical malpractice tribunal's decision with respect to the sufficiency of the plaintiff's offer of proof to determine "if '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.'" Ibid., quoting from Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989).
Here, Morrison's affidavit provides evidence that Sosa admitted to leaving a plastic anchor in Morrison's body during the July 4, 2007, surgery. Dr. Gulur's expert opinion provides evidence that an infected anchor could cause the persistent drainage issues that Morrison experienced after the July 4, 2007, surgery, and that leaving an anchor inside a patient would constitute a deviation from the standard of good medical practice. It does not matter that the medical records are silent as to removal of the plastic anchor during the November, 2007, surgery. To rule otherwise would lead to the illogical conclusion that medical practitioners could shield themselves from liability by omitting evidence of malpractice from a medical record. See Saunders v. Ready, 68 Mass. App. Ct. 403, 405 (2007) ("[W]here the surgeon accused of negligence fails to record in a postoperative report any indication of an injury, it is difficult to discern how a plaintiff would be able to prove the negligent act and causation directly, especially at the tribunal stage before discovery can be conducted").
The medical malpractice tribunal "engage[d] in impermissible appraisal of the weight and credibility of the evidence" when it disregarded Morrison's statements and Dr. Gulur's opinion based upon those statements. Gugino v. Harvard Community Health Plan, 380 Mass. 464, 468 (1980). It was not Dr. Gulur's responsibility to weigh Morrison's credibility with regard to the assertion that Sosa acknowledged leaving the plastic anchor behind. If substantiated, Morrison's statements could lead to the conclusion that, as alleged in count I of the complaint, Sosa deviated from the standard of good medical practice and caused Morrison harm.
With respect to the plaintiff's claims that St. Anne's and Prima Care are vicariously liable for Sosa's negligence (counts IV and V), those claims may proceed because the offer of proof on the underlying negligence was sufficient and because the agency issues involved are beyond the scope of the tribunal process. See Kopycinski v. Aserkoff, 410 Mass. 410, 418-419 (1991); Bing v. Drexler, 69 Mass. App. Ct. 186, 190-191 (2007). However, as to the plaintiff's claims that St. Anne's and Prima Care were directly negligent through "selecting, reviewing and supervising" Sosa (counts II and III), no evidence or even argument was offered to support these claims before the tribunal, and the tribunal correctly determined the offer of proof was insufficient as to them. See id. at 190.
Because the offer of proof as to the primary negligence claims was sufficient to raise a legitimate question of liability appropriate for judicial inquiry, and because the necessity for and the required amount of any bond on the remaining claims may change after further proceedings on remand, we decline to reach the question whether the surety bond met the requirements of G. L. c. 231, § 60B. See St. Germain, supra at 520 n.6.
On remand the judge should consider whether counts II and III should be dismissed for lack of prosecution or subject to a higher bond requirement in light of the following: (1) the plaintiff did not make any offer of proof related to those claims; (2) the plaintiff also did not provide notice that he was waiving his offer of proof as to those claims, see Denton v. Beth Israel Hosp., 392 Mass. 277, 280 n.4 (1984); (3) the plaintiff made no argument on appeal regarding those claims; and (4) the judge has not yet had an opportunity to consider the appropriateness of requiring a higher bond of the plaintiff to pursue those claims, see id. at 280 ("If a plaintiff declines to make an offer of proof, then the judge may assume that the plaintiff's claims are entirely frivolous. In that case, the judge may, without abusing his discretion, increase the bond to an amount calculated to cover all the costs which the defendant is likely to incur in defending the suit, including attorneys' fees").
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The judgment is vacated. The determination of the medical malpractice tribunal shall be struck as to counts I, IV, and V of the complaint and a new determination shall enter that the plaintiff's offer of proof as to these claims is sufficient under G. L. c. 231, § 60B. The determination of the medical malpractice tribunal as to counts II and III shall stand. The matter is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Fecteau, Hanlon & Carhart, JJ.),
Clerk Entered: November 3, 2014.