Opinion
14-P-122
03-11-2015
DONALD NORMAND v. RICHARD P. CAMBRIA & another.
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, Donald Normand, appeals from a separate and final judgment dismissing his medical malpractice claims against Dr. William Benedetto. See Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974); Blood v. Lea, 403 Mass. 430, 431 (1988) (permitting appeal from rule 54[b] dismissal in medical malpractice action). The case against Dr. Benedetto was dismissed by a Superior Court judge after a medical malpractice tribunal found that although Normand's offer of proof was sufficient as to defendant Dr. Richard Cambria, it was insufficient as to Dr. Benedetto. See G. L. c. 231, § 60B.
Normand did not pay the bond required by G. L. c. 231, § 60B, that would have allowed the case to proceed, and a separate and final judgment entered in Dr. Benedetto's favor.
Background. Normand underwent surgery to fix a thoracoabdominal aortic aneurysm. Dr. Cambria was the surgeon, and Dr. Benedetto was the surgical intensive care unit (SICU) attending physician; both provided follow-up care to Normand after the surgery.
Normand's brief cites portions of the expert opinion letter that refer to Dr. Benedetto as an "anesthesiologist," while the defendant's brief identifies him as an "intensivist," that is, a doctor who works in intensive care units. Marchan, Jallo, Rincon & Vibbert, The Intensivist, JHN Journal: Vol. 5, Iss. 2, Article 4, at 20 (2010). While it is possible to be both (see ibid.), it is clear Dr. Benedetto provided postoperative care here, and was not the anesthesiologist. The records he authored and signed are entitled "SICU Attending Note," while the surgery records indicate the anesthesiologist was Dr. Rae Allain.
During the surgery, a device was installed to drain Normand's spinal fluid. These drains are used during and after such surgeries to encourage blood flow to the spinal cord and decrease spinal fluid pressure -- lowering the risk, therefore, of spinal injury.
According to Normand's expert, the doctors ordered the drain removed prematurely (less than forty-eight hours postsurgery), which resulted in Normand's spinal cord ischemia, partial paralysis, and neurogenic bladder, which requires catheterization. The expert opines the acceptable standard of care requires removal of the drain no less than seventy-two hours after the surgery, so as to minimize the risk of spinal cord ischemic injury.
The expert stated that Dr. Benedetto's care fell "below the standard of care" when he "failed to recognize and appreciate the need for maintenance of the spinal drain for 72 hours post-operatively and when Dr. Benedetto ordered removal of the spinal drain less than 72 hours after Mr. Normand's thoracoabdominal aortic aneurysm repair."
Discussion. "Before a malpractice tribunal, 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), citing Santos v. Kim, 429 Mass. 130, 132-134 (1999). The standard is similar to that of a directed verdict: "[t]he evidence is to be viewed in a light favorable to the plaintiff . . . and the tribunal may not examine the weight or credibility of the evidence." Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010). An expert opinion that is part of an offer of proof cannot be "based on an assumption of facts that were not rooted in the evidence." Id. at 93. See Jasper v. Tomaiolo, 20 Mass. App. Ct. 201, 204 (1985).
Dr. Benedetto asserts the expert opinion does not properly address the facts of this case, because -- contrary to the expert's report -- he never ordered the drain removed but rather relied upon Dr. Cambria's orders to do so. We disagree.
Drawing all inferences in Normand's favor, as we must, the record suggests that Dr. Benedetto either independently, or together with Dr. Cambria, ordered the drain's removal. In a note dated September 11, 2009, Dr. Benedetto wrote, "Spinal drain capped, will removed [sic] if exam remains good after 6 hours." This entry could reasonably be understood to mean that Dr. Benedetto's independent postoperative plan for care consisted of the drain's removal. See Saunders v. Ready, supra at 404-405.
Dr. Benedetto spends a considerable portion of his brief arguing that it was Dr. Cambria who ordered the spinal drain capped, and that it was capped before Dr. Benedetto visited the patient. Even accepting this recounting of the facts, the expert opinion faults the doctors for removal of the drain altogether, not the capping of it.
Moreover, even assuming Dr. Cambria ordered the drain's removal, the expert report also faults Dr. Benedetto for "fail[ing] to recognize and appreciate the need for maintenance of the spinal drain for 72 hours." At a minimum, Dr. Benedetto's note suggests that he knew the plan was to remove the drain prior to the passing of seventy-two hours, and he was both in agreement and failed to recommend otherwise. See Matsuyama v. Birnbaum, 452 Mass 1, 7-8 (2008) (failure to act can support claim of medical malpractice).
Unlike the situation we addressed in Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct. at 93, there is no suggestion here that Dr. Benedetto consulted with Dr. Cambria or, more importantly, deferred to his judgment. Compare ibid. (expert's "opinion lacked any consideration of the defendant's actual conduct in seeking out the higher expertise of the radiologists with whom she consulted"). Nor is there any indication that Dr. Cambria was more experienced than Dr. Benedetto, the SICU attending physician, in postoperative care. Compare ibid. (radiologists more experienced than emergency room physicians in matters of radiology).
The judgment dismissing the plaintiff's claims against Dr. Benedetto is vacated, and a new decision shall enter that the offer of proof by the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.
So ordered.
By the Court (Cypher, Grainger & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 11, 2015.