Opinion
19-P-1099
06-11-2020
JOSEPH PULEIO 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
This appeal follows after an adverse determination by a medical malpractice tribunal and the denial of the plaintiff's motion to reduce bond. For the reasons that follow, we affirm.
Background. The plaintiff, Joseph Puleio, an inmate housed at Massachusetts Correctional Institution at Concord, brought a medical malpractice claim against five doctors and Boston Medical Center. Puleio claims that the defendants misdiagnosed his intraocular lens migration as a bacterial or viral infection and as a result he suffered various injuries including irreparable damage to the iris of his left eye. The claim was referred to the tribunal, to which Puleio submitted an offer of proof without any supporting expert medical opinion. The tribunal found that the evidence presented, even if believed, was insufficient to raise a legitimate question of liability appropriate for judicial inquiry, and ordered Puleio to post a bond in the amount of $6,000, subject to dismissal of the action if the bond was not posted within thirty days. Puleio sought reduction of the bond to one hundred dollars on the ground of indigency. The tribunal judge, noting that Puleio's offer of proof "unquestionably requires an expert opinion," declined to reduce the bond. Puleio did not post the bond and his complaint was dismissed. On appeal, Puleio contends that his offer of proof was sufficient and that the tribunal judge abused his discretion by not reducing the bond. We affirm.
Discussion. In all cases alleging medical malpractice, a plaintiff must present an offer of proof to the tribunal, which determines whether the evidence presented is sufficient to raise a legitimate claim of liability appropriate for judicial inquiry. See G. L. c. 231, § 60B. A plaintiff's offer of proof will prevail before a medical malpractice tribunal if he "(1) show[s] that the defendant is a provider of health care . . .; (2) demonstrate[s] that the health care provider did not conform to good medical practice; and (3) establishe[s] resulting damage." Saunders v. Ready, 68 Mass. App. Ct. 403, 403-404 (2007). In reviewing the tribunal's determination, we apply a directed verdict standard and ask whether, from the evidence in the plaintiff's offer of proof, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff. See Goudreault v. Nine, 87 Mass. App. Ct. 304, 308-309 (2015). Accordingly, a sufficient offer of proof almost always requires expert opinion. See Anderson v. Attar, 65 Mass. App. Ct. 910, 911 (2006). The tribunal did not err by finding Puleio's offer of proof lacking where he submitted only his complaint and medical records. That an allegedly misdiagnosed intraocular lens migration can lead to the harm claimed by Puleio is beyond the common knowledge and experience of an ordinary juror, and thus required expert opinion. Contrast Lipman v. Lustig, 346 Mass. 182, 184 (1963) (jurors did not need expert testimony to determine whether dentist's dropping instrument into patient's throat was negligence).
Similarly, we discern no abuse of discretion in denying Puleio's motion to reduce the bond. In considering such a motion, the tribunal judge was required to determine whether Puleio was indigent and then assess the strength of his offer of proof to the tribunal. See Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 678 (1992). Even assuming Puleio to be indigent, the tribunal judge did not abuse his discretion by refusing to reduce the bond since the offer of proof, construed most favorably to Puleio, "could not support a verdict for the plaintiff" (citation omitted). Id.
Judgment affirmed.
By the Court (Sullivan, Kinder & Lemire, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 11, 2020.