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Martino v. Malone

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 23, 2012
11-P-1400 (Mass. Apr. 23, 2012)

Opinion

11-P-1400

04-23-2012

MARJORIE H. MARTINO & another v. STEPHEN L. MALONE.


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

Marjorie H. Martino and Peter Martino appeal from a separate and final judgment entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), dismissing the medical malpractice claims of plaintiff Marjorie H. Martino (plaintiff) against defendant, Dr. Stephen L. Malone. On appeal, the plaintiff argues that the medical malpractice tribunal (tribunal) (1) erred in concluding that the plaintiff's offer of proof was insufficient to warrant further judicial inquiry, (2) improperly examined the weight and credibility of the evidence, and (3) was improperly composed. We affirm.

The tribunal determined that the plaintiff's offer of proof, if properly substantiated, was sufficient to raise a legitimate question of liability appropriate for judicial inquiry as to the other defendants. The instant appeal relates only to Dr. Malone.

To proceed on a claim of medical malpractice without posting a bond, a plaintiff's offer of proof must demonstrate to the tribunal that the defendant (1) is a provider of medical care, (2) who did not conform to good medical practice, and (3) damage resulted. See Saunders v. Ready, 68 Mass. App. Ct. 403, 404 (2007). '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. . . . The evidence is to be viewed in a light favorable to the plaintiff, see Blake v. Avedikian, 412 Mass. 481, 484 (1992), and the tribunal may not examine the weight or credibility of the evidence.' Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010).

Even under this indulgent standard, the tribunal did not err in concluding that the plaintiff's offer of proof was insufficient because an offer of proof 'must comprise more than mere conclusory allegations' as to each element of proof. See Booth v. Silva, 36 Mass. App. Ct. 16, 20 (1994). The crux of the expert opinion of Thomas H. Gouge, M.D. relates to a variety of alleged surgical missteps by defendant Dr. Drinkwater in a November, 2006, surgery that resulted in the transection of the plaintiff's left ureter and caused the plaintiff's claimed gastrointestinal problems. Dr. Gouge's comments with respect to Dr. Malone, and his alleged negligence in a December, 2006 surgery, are little more than an afterthought. While Dr. Gouge's expert opinion arguably suffices to establish that Dr. Malone departed from the requisite standard of care by removing a piece of metal hardware from the plaintiff's spine and replacing it with an 'iliac crest bone graft,' his opinion does not demonstrate that the alleged negligent conduct of Dr. Malone was, 'more probably than not,' a cause of the gastrointestinal complications of which the plaintiff complains. See Keppler v. Tufts, 38 Mass. App. Ct. 587, 591-592 (1995). Rather, Dr. Gouge's opinion contains only a nonspecific assertion that Dr. Malone's deviation from the standard of care was 'a substantial contributing factor in the subsequent complications suffered by Mrs. Martino.' Indeed, Dr. Gouge's opinion does not even identify what 'complications' the plaintiff might have experienced arising from Dr. Malone's December conduct (as opposed to those arising from Dr. Drinkwater's November actions). Absent a factual basis for concluding that Dr. Malone's alleged negligence (as distinct from that of Dr. Drinkwater) caused or contributed to specific damage to the plaintiff, any determination that Dr. Malone's negligence caused her damage is impermissibly based on speculation. See Saunders v. Ready, supra at 406.

Dr. Gouge asserted that '[i]t is contrary to basic surgical practice for any surgeon, including an orthopedic surgeon, to replace the removed metal hardware with a portion of iliac crest bone graft.'

The plaintiff's remaining arguments also lack merit. We discern no improper weighing of evidence in the tribunal's determination that the opinion of Dr. Gouge is conclusory. Even assuming that Dr. Gouge's knowledge of 'basic surgical principles' sufficed for him to render an opinion that Dr. Malone deviated from the standard of care of an orthopedic surgeon, see Kapp v. Ballantine, 380 Mass. 186, 192 n.7 (1980), the tribunal correctly concluded that the plaintiff's offer regarding causation is insufficient.

The plaintiff's challenge to the tribunal's composition, raised for the first time on appeal, is waived. See Blood v. Lea, 403 Mass. 430, 435-436 (1988).

Judgment affirmed.

By the Court (Grasso, Mills, & Trainor, JJ.),


Summaries of

Martino v. Malone

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 23, 2012
11-P-1400 (Mass. Apr. 23, 2012)
Case details for

Martino v. Malone

Case Details

Full title:MARJORIE H. MARTINO & another v. STEPHEN L. MALONE.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 23, 2012

Citations

11-P-1400 (Mass. Apr. 23, 2012)