Opinion
10-P-1895
10-14-2011
MARIA FLAGG v. FALMOUTH HOSPITAL & another.
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 appeals from a judgment entered on her medical malpractice claims after she failed to post a bond upon an adverse medical malpractice tribunal finding. See G. L. c. 231, § 60B. A judge of the Superior Court dismissed her complaint without prejudice on August 11, 2010.
On her third trip, over the course of two days, to the emergency room at the defendant hospital, the plaintiff was diagnosed with and treated for bacterial meningitis. She alleges that the delay in diagnosis caused her harm. She submitted an offer of proof accompanied by an expert opinion letter. After a hearing, the tribunal determined that the offer of proof did not present evidence sufficient to raise a legitimate question of liability appropriate for judicial inquiry. We agree with the ruling of the tribunal and affirm the judgment dismissing the case.
Discussion. In accordance with G. L. c. 231, § 60B, a medical malpractice tribunal must determine if the plaintiff's offer of proof contains evidence which, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. See G. L. c. 231, § 60B; Haywood v. Rechen, 45 Mass. App. Ct. 185, 188 (1998). '[A] plaintiff's offer of proof must (1) show that the defendant is a provider of health care as defined in G. L. c. 231, § 60B; (2) demonstrate that the health care provider did not conform to good medical practice; and (3) establish resulting damage.' Saunders v. Ready, 68 Mass. App. Ct. 403, 403-404 (2007). 'In evaluating a plaintiff's offer of proof, the tribunal must apply a standard comparable to that which a trial judge would employ in determining whether to allow a defendant's motion for a directed verdict.' St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994). See Santos v. Kim, 429 Mass. 130, 137 (1999); Haywood v. Rechen, supra.
This appeal turns, as do most tribunal decision appeals, on the sufficiency of the expert's opinion letter. With regard to the second prong of the Saunders test, the defendants allege that the plaintiff's offer of proof, specifically the expert opinion letter, failed to demonstrate that the defendant emergency room physician breached the standard of care. The defendants further argue that even had the plaintiff's offer of proof properly demonstrated such a breach, that the causation and damage element is not met.
Even assuming arguendo that the defendants owed the plaintiff a duty and that the defendants breached that duty, the plaintiff has not alleged sufficient facts to meet her burden with respect to causation and damage.
An expert opinion must 'establish a causative connection' between the doctor's alleged misconduct and the alleged injury. LaFond v. Casey, 43 Mass. App. Ct. 233, 237 (1997). Further, '[a]n acceptable offer of proof must comprise more than mere conclusory allegations or statements of counsel.' Booth v. Silva, 36 Mass. App. Ct. 16, 20 (1994).
The plaintiff's expert letter states that had a meningitis test been performed during the plaintiff's first and second hospital visits, 'Ms. Flagg would not have suffered the degree of morbidity which she subsequently had following the diagnosis and treatment of her condition.' The plaintiff apparently relies on an earlier statement in the opinion letter that described her condition subsequent to her meningitis admission, namely that she 'suffers from left sided hearing loss and persistent left ear and mastoid infections.' However, the expert does not express an opinion that the actions of the defendants caused the hearing loss, and notes that 'prior to her diagnosis of meningitis [plaintiff] had some left ear difficulty (tinnitus and middle ear effusion).'
The opinion letter fails to establish a causative connection between the alleged breach of the standard of care and a specific injury suffered by the plaintiff. Rather, the plaintiff relies on the expert's vague and conclusory allegation that the plaintiff suffered 'worsening subsequent morbidity' as a result of the alleged breach. Such a statement does not adequately support a causative connection between the defendants' conduct and the plaintiff's injury. The offer of proof therefore does not raise a question of liability appropriate for judicial inquiry.
For the foregoing reasons, the tribunal's determination was not error, and the judgment is affirmed.
So ordered.
By the Court (Trainor, Brown & Carhart, JJ.),