Opinion
12-P-1233
02-10-2014
CARMEN ABREU-RILEY v. HENRY M. LERNER & 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
Carmen Abreu-Riley (plaintiff) filed an action in the Superior Court against doctors Henry M. Lerner and Eugene Aron (defendants), alleging she had been harmed by the defendants' negligent medical treatment of her. A medical malpractice tribunal, convened pursuant to G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5, concluded that the plaintiff's offer of proof was 'not sufficient to raise a legitimate question of liability appropriate for judicial inquiry.' Ibid. The plaintiff did not post a bond to continue the litigation, and a judge dismissed the case. The plaintiff appeals from the judgment for the defendants. We vacate the dismissal. Background. We summarize the factual allegations contained in the plaintiff's evidentiary proffer, which included her affidavit, medical records, and a written opinion of her expert, Dr. Wayne R. Cohen, a licensed physician, who is board-certified in general obstetrics and gynecology.
NWOG was sued on a theory of vicarious liability. No malpractice tribunal was convened respecting NWOG's potential liability.
A majority (2-1) of the tribunal found as much. See Kopycinski v. Aserkoff, 410 Mass. 410, 411 (1991) (majority of the panel shall determine the finding of the tribunal).
In April, 2010, Dr. Lerner, a gynecologic surgeon, examined the plaintiff, then forty-four years old, who presented chronic pelvic pain. Dr. Lerner recommended an 'operative laparoscopy to evaluate the pelvis, to possibly free up scar tissue, and to possibly remove ovaries.' The plaintiff consented to the same. On May 14, the date of surgery, Dr. Lerner performed a diagnostic laparoscopy instead of an operative procedure to treat the condition. He scheduled a second laparoscopy for July 23. On that date, Dr. Lerner, assisted by Dr. Aron, performed a lysis of bowel adhesions and an ovarian cyst resection. Two days later (July 25), the plaintiff was readmitted to the hospital complaining of abdominal and pelvic pain; at that time, a computed tomography (CT) scan revealed 'gross peritoneal air.' Dr. Pablo Gazmuri, assisted by Dr. Lerner, performed an urgent laparotomy, finding a 'perforation [of the small bowel] adjacent to an area of omentum that had been clearly transected in the lysis of adhesions.' The diagnosis was abdominal peritonitis secondary to a small bowel perforation. In October, 2010, the plaintiff was again hospitalized, when she had a second laparotomy for an acute bowel obstruction. She continues to suffer from abdominal and pelvic pain.
Expert opinion. After reviewing the medical records, the plaintiff's expert, Dr. Cohen -- whose qualifications are not contested -- opined that there were two deviations from the standard of care. 'The first involved the failure to surgically treat the patient's adhesions, [on May 14, 2010,] as was planned, at the first laparoscopy.' 'The second was the failure of Drs. Lerner and Aron to recognize the bowel injury they created during the operative laparoscopy on July 23, 2010.' Dr. Cohen concluded that the defendants' 'departure from the standard led directly to the development of peritonitis, the need for laparotomy and bowel resection, as well as the subsequent and persistent complications from which the patient still suffers.'
Review standard. 'The tribunal's task in evaluating the sufficiency of the plaintiff's offer of proof is akin to a trial judge's evaluation of a motion for a directed verdict.' Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010), citing Little v. Rosenthal, 376 Mass. 573, 578 (1978). The tribunal must consider the evidence, from the offer of proof, in a light most favorable to the plaintiff. Blake v. Avedikian, 412 Mass. 481, 484 (1992). In deciding whether the tribunal's finding was correct, we must determine whether, from any proof proffered by the plaintiff, 'any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.' Glicklich v. Spievack, 16 Mass. App. Ct. 488, 489-490 (1983), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). We hold such an inference can be drawn in the plaintiff's favor.
Analysis. A cautery injury to the bowel is not uncommon during a laparoscopy procedure. The plaintiff's expert, Dr. Cohen, cautioned that a bowel injury per se does not always indicate a departure from the standard of care. Dr. Cohen, however, did opine that 'the failure to recognize' a bowel injury during the surgical procedure is evidence of substandard medical care on the part of a gynecologic surgeon, as are Drs. Lerner and Aron. On the other hand, the defendants contend that they exercised 'great care' during the July 23 surgery, and that it is speculation to suggest otherwise or to infer that the small bowel perforation was identifiable to them in the circumstances. We disagree.
Dr. Cohen explained that '[e]lectrocautery injuries during operative laparoscopy can occur by direct application of the cautery to the bowel as well as by sparks that are to the tissue when the cautery is discharged nearby.'
It is enough to say that, when the material facts raised by the plaintiff's evidentiary proffer are disputed -- as they are here respecting the defendants' want of care in the course of the July 23 surgical procedure -- the issue of negligence must be left for the jury to determine on all the evidence. See Blood v. Lea, 403 Mass. 430, 434 (1988).
Indisputably, the bowel injury (perforation) led to the plaintiff suffering abdominal peritonitis and further serious complications, requiring additional surgery. The postoperative (July 25, 2010) hospital record confirms as much. The plaintiff's proffer contains sufficient evidence from which a rational jury could find that she was, most probably, harmed as a result of the defendants' negligence. See Blood, supra. It is an issue on which reasonable minds could disagree, but we cannot fairly pronounce it unwarranted if a jury might decide liability must be imposed. See Rahilly v. North Adams Regional Hosp., 36 Mass. App. Ct. 714, 717-720 (1994).
The judgment of dismissal is vacated. A new decision shall enter that the plaintiff's offer of proof before the tribunal is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.
So ordered.
By the Court (Hanlon, Brown & Agnes, JJ.),