Opinion
15-P-351
04-11-2016
YVETTE CALHOUN v. BOSTON MEDICAL CENTER & others.
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
The plaintiff, Yvette Calhoun, suffered injury as the result of a series of two kidney transplant surgeries. She now appeals, pro se, from the dismissal of two complaints for medical malpractice after a medical malpractice tribunal (tribunal) found in favor of the defendants and she was unable to post bond. We vacate the dismissal of the complaint arising out of the first procedure. We affirm the judgment of dismissal with respect to the complaint arising out of the second procedure.
A. Background. On August 28, 2008, the plaintiff received a kidney transplant at Boston Medical Center in a procedure performed by defendants Drs. Matthew G. Nuhn and Amitabh Gautam. Soon after the transplant surgery, it became apparent that the transplanted kidney was infected, and on September 10, 2008, the kidney was removed. Nearly two years later, on March 11, 2010, the plaintiff received a second kidney transplant at the same hospital, performed by the same surgeons. She alleges that "[s]omething went wrong" and she was deprived of oxygen for a period during the procedure, resulting in brain damage.
The plaintiff's medical records indicated that "[o]n follow up studies of the donor, the donor was found to be positive for [the infection] as well," and that the "infection has also been reproduced in the recipient of the second kidney from this donor."
On December 23, 2011, the plaintiff brought her first action against the defendants, alleging negligence in the performance of her first kidney transplant. On March 5, 2013, she brought her second action against the defendants, alleging negligence in her subsequent kidney transplant. The two actions were consolidated. A medical malpractice tribunal was convened on May 9, 2014. Although plaintiff's counsel did not present any expert opinion, he asserted that the facts "nevertheless, meet the statutory criteria of something that's worthy of investigation." He further stated that the medical records produced by the defendants contained no information concerning the screening of the first kidney, although "admittedly, the infection was not a common microorganism that is routinely tested for." The medical malpractice tribunal found in favor of the defendants in both actions.
Civil action 11-04690.
Civil action 13-00800.
Plaintiff's counsel also stated that "the statute of limitations was missed" in the first action, but contended that the brain injury suffered during the second transplant tolled the statute. See G. L. c. 260, § 7 (tolling limitations periods when plaintiff "is incapacitated by reason of mental illness"). Whether the plaintiff's alleged brain injury would trigger this provision requires further fact finding. The defendants, who pleaded a statute of limitations defense in their answer to the complaint, are free to raise this issue in subsequent court proceedings on civil action 11-04690.
To continue with her case in court, the plaintiff was required by statute to post bond in the amount of $6,000. See G. L. c. 231, § 60B. Her first motion to reduce the bond was denied. On reconsideration, the tribunal judge found, "While the plaintiff meets that test for indigency, the court cannot in good conscience find that 'the plaintiff has made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard'" as required by Denton v. Beth Israel Hosp., 392 Mass. 277, 279 (1984). The plaintiff was unable to post the $6,000 bond, and the defendant's motions to dismiss were allowed on November 10, 2014. She timely appealed from both the judgments of dismissal and from the denial of her application to reduce the bond.
B. Discussion. 1. Findings of the tribunal. We review the sufficiency of the plaintiff's offer of proof before the tribunal "to determine principally whether [the doctors'] 'performance[s] did not conform to good medical practice,' and whether damage resulted." Thou v. Russo, 86 Mass. App. Ct. 514, 516 (2014), quoting from Santos v. Kim, 429 Mass. 130, 133 (1999). "An offer of proof is sufficient 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.'" Thou v. Russo, supra, quoting from St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994). We review the evidence in the light most favorable to the plaintiff, but the offer of proof must not be based on speculation, conclusory allegations, or assumptions not supported by the record. See McCarthy v. Hauck, 15 Mass. App. Ct. 603, 610 (1983); Keppler v. Tufts, 38 Mass. App. Ct. 587, 589-590 (1995). "It is the plaintiff's burden to introduce 'an offer of proof that persuades the tribunal that a legitimate question of liability ha[s] been raised.'" Goudreault v. Nine, 87 Mass. App. Ct. 304, 309 (2015), quoting from Nickerson v. Lee, 42 Mass. App. Ct. 106, 109 (1997).
Here, plaintiff's counsel did not proffer any expert testimony or any other evidence from which "a reasonable inference could be drawn in favor of the plaintiff" with respect to the second procedure. Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943). "Establishing the applicable standard of care typically requires expert testimony." Palandjian v. Foster, 446 Mass. 100, 105-106 (2006). In "exceptional cases" a plaintiff can prove medical malpractice without expert testimony, but "[t]he exceptional cases seem to be those 'where the negligence and harmful results are sufficiently obvious as to lie within common knowledge.'" Haggerty v. McCarthy, 344 Mass. 136, 139-140 (1962), quoting from Cyr v. Giesen, 108 A.2d 316, 318 (1954). In this case, there is nothing obvious about what may have gone wrong in the second surgery. An expert's report was necessary to explain how the defendants' conduct failed to conform with good medical practice.
The first surgery presents a closer question, as it seems sufficiently obvious to us that implanting an infected kidney is not good medical practice. The doctrine of res ipsa loquitur permits an inference of negligence "when an accident is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes including conduct of the plaintiff are sufficiently eliminated by the evidence." Edwards v. Boland, 41 Mass. App. Ct. 375, 377 (1996). Although plaintiff's counsel conceded, perhaps too readily, that the type of infection found in the kidney that the plaintiff received was "not routinely tested for," both the source of the kidney and the efforts taken to screen it are at present unknown. Based on common knowledge and experience, a fact finder could reasonably infer that absent negligence on the part of the hospital or the surgeons, the plaintiff would not have received an infected kidney. "If any such combination of circumstances could be found" to permit a reasonable inference in favor of the plaintiff, "it is, for present purposes, immaterial how many other combinations could have been found which would have led to conclusions adverse to the plaintiff." Goudreault v. Nine, 87 Mass. App. Ct. at 309, quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. at 302. We are bound to conclude that 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. See St. Germain v. Pfeifer, 418 Mass. at 516; Haywood v. Rechen, 45 Mass. App. Ct. 185, 189 (1998).
2. Motion to reduce the bond. Where the tribunal finds in favor of the defendants, G. L. c. 231, § 60B, provides that, "the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars." "Upon motion filed by the plaintiff, and a determination by the court that the plaintiff is indigent [the tribunal single] justice may reduce the amount of the bond but may not eliminate the requirement thereof." Ibid. However, "the judge should not reduce the bond . . . unless the plaintiff has made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard." Denton v. Beth Israel Hosp., 392 Mass. at 281. "The plaintiff has the burden of proving indigency and compliance with the Denton standard." Rogers v. Boston, 33 Mass. App. Ct. 328, 329 (1992).
For the reasons discussed above regarding the insufficiency of the offer of proof with respect to the second surgery, the tribunal judge did not err or abuse his discretion in denying the plaintiff's motion to reduce the bond with respect to that matter. See Denton, supra. Because of the view we take of the plaintiff's showing regarding the first surgery, any issue regarding the amount of a bond is moot.
Conclusion. The findings of the tribunal dismissing civil action 11-04690 (related to the first procedure) are to be replaced by the decision of this court that the offer of proof of the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. Therefore, the judgment of dismissal is vacated, and the plaintiff may proceed with her claim. The judgment of dismissal of civil action 13-00800 (related to the second procedure) is affirmed.
So ordered.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 11, 2016.