Opinion
11-P-1042
03-14-2012
JOHN R. MACKENZIE & another v. CHRIS LEE.
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 plaintiffs brought an action alleging medical malpractice against Dr. Louis G. Jenis, Dr. Chris Lee, and the Boston Spine Group, for injuries John MacKenzie (the plaintiff) allegedly sustained as a result of two back surgeries. Jenis performed both surgeries and was assisted by Lee during the first surgery. A medical tribunal reported that 'as to Chris Lee MD . . . there is not sufficient evidence to raise a legitimate question as to liability appropriate for judicial inquiry.' The plaintiffs appeal from the judgment dismissing the complaint against Lee for failure to post a bond. We affirm.
The medical tribunal's task is similar to a trial judge's role in ruling on a motion for a directed verdict. Keppler v. Tufts, 38 Mass. App. Ct. 587, 589 (1995), citing Little v. Rosenthal, 376 Mass. 573, 578 (1978). Under that standard, a plaintiff's offer of proof as to negligence will prevail before a medical tribunal if a plaintiff can show (1) that the defendant is a provider of health care as defined in G. L. c. 231, § 60B; (2) that the health care provider did not conform to good medical practice; and (3) that damage resulted therefrom. Saunders v. Ready, 68 Mass. App. Ct. 403, 403-404 (2007), citing Santos v. Kim, 429 Mass. 130, 132-134 (1999). We are mindful that the tribunal is not to appraise the weight or credibility of the evidence. DiGiovanni v. Latimer, 390 Mass. 265, 269 (1983). Here, we agree with the tribunal's assessment that the plaintiffs' offer of proof was deficient as a matter of law.
The plaintiff had lumbar laminectomies in 1989 and 2002. A November, 2008, lumbar spine MRI report stated that the plaintiff had postoperative changes and spinal stenosis from L3-L4 through L5-S1 and that his degenerative disc disease had increased since 2004 as had the degree of spinal stenosis. On February 9, 2009, the plaintiff saw Jenis, who diagnosed him with L2-L5 laminectomy instability and chronic back pain. On May 5, 2009, Jenis operated on the plaintiff; Lee was the assistant surgeon. The surgery included lateral interbody fusion at L2-L5a and lateral interbody cage instrumentation. The plaintiff subsequently developed worsening left leg pain, and a May 9 CT scan showed a severe left L4-L5 foraminal narrowing. On May 21, 2009, Jenis performed a second surgery -- a left L4-L5 revision laminectomy with nerve root decompression ; Lee did not assist in this surgery. We review the offer of proof as to Lee, keeping in mind that in medical malpractice actions, experts cannot base their opinions on speculation, conclusory allegations, or assumptions not supported by the record. See Gugino v. Harvard Community Health Plan, 380 Mass. 464, 467-468 (1980); Bradford v. Baystate Med. Center, 415 Mass. 202, 206 n.5 (1993); McCarthy v. Hauck, 15 Mass. App. Ct. 603, 610 (1983); Keppler v. Tufts, 38 Mass. App. Ct. at 590.
The plaintiff continued to treat with Jenis until October 9, 2009, and was seen by other doctors thereafter.
In his affidavit, the plaintiffs' expert, Dr. Fraser, opined that Jenis and Lee breached the applicable standard of care during the May 5, 2009, surgery. However, there is little to support this conclusion as to Lee. The only reference to Lee in the plaintiff's medical records is Lee's listing as the assistant surgeon in the operative report. As to the affidavit, Fraser did not discuss Lee's role and responsibilities as an assistant surgeon, nor did he state what Lee did or failed to do during the surgery separately and apart from Jenis. In setting out the facts, Fraser wrote that the final positioning of each implant was confirmed by Jenis.
In addition, Fraser alleged that Jenis also violated the standard of care during the subsequent May 21, 2009, surgery. We need not address aspects of Fraser's opinion that deal with the latter surgery, as there is no allegation of Lee's involvement in that surgery.
Fraser described commonly used intraoperative monitoring techniques and acknowledged that Jenis and Lee used them during the surgery, but Fraser opined that the doctors did not rely on them:
'These intraoperative monitoring techniques were utilized during Mr. MacKenzie's surgical procedure. Nonetheless, Dr. Jenis and Dr. Lee seemed to have ignored the abnormal findings and concluded the procedure without correcting these malpositions of the hardware which ultimately caused the neural damage to Mr. MacKenzie. This represents a clear deviation from the acceptable standard of care expected of an orthopedic surgeon like Dr. Louis G. Jenis and Dr. Chris Lee (assistant), performing the type of orthopedic surgical procedure as the one performed on Mr. MacKenzie on May 5, 2009.'
Fraser's statements that Jenis and Lee seemed to have ignored the abnormal findings and concluded the procedure without correcting the malpositions of the hardware, which ultimately caused the neural damage to MacKenzie, is problematic in a number of ways. First, Fraser's 'seemed to have ignored' opinion is speculative and based on conjecture and surmise. Second, Fraser failed to identify the abnormal findings allegedly available at the time of the May 5 surgery, thus failing to base his opinion on the record. In fact, the record shows that the first available test results were those from a CT scan performed on May 9, 2009, several days after the surgery.
With respect to Fraser's additional assertion that malpositions of the hardware during the first surgery caused neural damage to the plaintiff, we note that the most recent medical records in the record are those of Dr. Kaplan, whom the plaintiff saw in November of 2009 and who wrote that 'the sensory findings . . . would be only consistent with polyneuropathy, which is the single diagnosis supported by the test results,' and also wrote, following EMG testing, that the results contained 'findings that would be consistent with an inherited neuropathy.'
Fraser also wrote in his affidavit:
'Allowing Mr. MacKenzie to leave the operating room without addressing any of the several intraoperative monitoring tests that were readily available, and with the misplaced cage not repositioned in the proper direction and location was a clear deviation from the acceptable standard of care expected of an orthopedic surgeon performing this type of surgical procedures [sic].'
Not only is there nothing in the operative report to support Fraser's statement that intraoperative monitoring tests were not addressed, the report repeatedly reveals the opposite. Cf. LaFond v. Casey, 43 Mass. App. Ct. 233, 237-238 (1997). There is also nothing in the report showing that the monitoring techniques used during the surgery showed a misplaced cage.
'[M]onitoring including EMG was performed throughout'; '[a] guidewire was placed into the disc space under AP and lateral plane fluoroscopy'; 'final positioning confirmed with AP and lateral plane fluoroscopy'; '[f]inal positioning of each implant was confirmed under AP and lateral plane fluoroscopy'; '[f]inal positioning of the hardware was confirmed with AP and lateral plane fluoroscopy'; [f]inal positioning was confirmed.'
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Because Fraser's opinion 'was based on an assumption of facts that were not rooted in the evidence, the offer of proof was fatally deficient.' See Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 93 (2010).
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Hanlon, JJ.)