Opinion
22-P-10
01-09-2023
ELLEN PAUL v. ERIC G. HALVORSON & others.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 2 3.0
The plaintiff suffered burns from a fire in her home and was treated at Brigham and Women's Hospital (the hospital). By this appeal, she seeks reversal of a medical malpractice tribunal's findings in favor of defendants Eric G. Halvorson and Indranil Sinha, a Superior Court judge's denial of her motion to reduce bond due to her indigency, and a second judge's dismissal of her complaint for failure to post the bond. We affirm.
Background.
The plaintiff was admitted to the hospital after a home improvement project went horribly wrong, causing her to suffer second and third-degree burns over large portions of her right side. She was examined by Drs. Halvorson and Sinha, treated and discharged, and then returned after approximately two weeks for skin grafts. Those two weeks were very difficult for the plaintiff, who characterized her time at home as "torture." During the grafting procedure, a device called a "dermatome" was not properly adjusted, causing an initial skin graft on the plaintiff's right thigh to be harvested "somewhat thickly at 31 thousandths of an inch." This graft was placed over the deepest burn. The subsequent grafts were harvested at twelve and eight thousandths of an inch. The operative medical records reflect that Dr. Halvorson explained to the plaintiff, in the recovery room, "that our initial autograft harvest in the thigh was taken too deeply and that this required a separate thin split thickness skin graft to cover to promote healing."
The plaintiff filed a medical malpractice suit against Drs. Halvorson and Sinha, the hospital, and related corporate entities. Among other claims, the plaintiff maintained that the admittedly too-deep skin graft disfigured her and required additional grafting. She also claimed that the decision to send her home for almost two weeks before the skin graft was "prima facie negligent care."
Brigham Health, Inc., Brigham and Women's Hospital, and Partners Healthcare System, Inc. Judgment entered for these defendants when a third judge of the Superior Court concluded, after hearing a motion for summary judgment, that there was no allegation of direct negligence by the corporate defendants and no vicarious liability pled in the complaint. No appellate argument is directed at this ruling, and therefore we need not reach it. Zoning Board of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55 (2013), citing Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
After evaluating the plaintiff's offer of proof, a medical malpractice tribunal (tribunal) found for Drs. Halvorson and Sinha and ordered the plaintiff to post a $6,000 bond to pursue her claim through the judicial process. See G. L. c. 231, § 60B; Little v. Rosenthal, 376 Mass. 573 (1978). The plaintiff filed an emergency motion to reduce the bond, which was denied by the first judge. The case was dismissed by the second judge when the plaintiff failed to post a bond. After additional litigation not relevant here, this timely appeal followed.
At the same time he allowed the motion to dismiss, the second judge allowed in part the plaintiff's motion to amend her complaint; the amended complaint named these defendants again as well as many other members of the hospital staff. All those staff except for Laura A. Welsh and Michael Wilson were dismissed by stipulation. At a trial, a fourth Superior Court judge directed verdicts for Dr. Wilson and a jury found in favor of Dr. Welsh. On appeal, the plaintiff makes passing reference to the partial allowance of her motion to amend and the fourth judge's jury instructions. This does not rise to the level of adequate appellate argument, however, so we decline to address those claims.
Discussion.
1. Tribunal's determinations.
"To prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant physician breached that standard, and that this breach caused the patient's harm." Palandjian v. Foster, 446 Mass. 100, 104 (2006). "Establishing the applicable standard of care typically requires expert testimony." Id. at 105-106. In "exceptional" situations, "the facts in a malpractice case may be such that jurymen out of their common knowledge and experience are able to pass on this question." Malone v. Bianchi, 318 Mass. 179, 182 (1945).
"The tribunal is charged with determining, on the basis of an offer of proof made by the plaintiff, whether 'a legitimate question of liability appropriate for judicial inquiry' is presented." Paro v. Longwood Hosp., 373 Mass. 645, 648 (1977). "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." Cooper v. Cooper-Ciccarelli, 77 Mass.App.Ct. 86, 91 (2010) . To apply that standard is to ask whether, "taking into account all the evidence in its aspect most favorable to the plaintiff," a "jury reasonably could return a verdict for the plaintiff." Tosti v. Ayik, 394 Mass. 482, 494 (1985), quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 254 (1983). We apply the same standard. Santos v. Kim, 429 Mass. 130, 137 (1999) .
The record supports the tribunal's conclusions. First, the plaintiff's offer of proof failed to make an adequate showing that the defendants' conduct caused her injuries. While she maintained that both doctors met and examined her and that Dr. Halvorson was "the attending doctor" who harvested the skin graft, she made no claim that either defendant was responsible for calibrating the grafting tool, or that Dr. Sinha played a role in the surgery. See, e.g., Santos, 429 Mass. at 137 (doctor's position not sufficient to prove duty to monitor plaintiff's blood test results; potential liability "depends on the particular facts"); Coughlin v. Bixon, 23 Mass.App.Ct. 639, 643 (1987), quoting Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983) (plaintiff must show "that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was responsible than from any other cause").
Interpreting the plaintiff's offer of proof to the tribunal in the light most favorable to her, she submitted that Dr. Sinha was designated to "follow" her care and, in that role, failed to admit her to the hospital and offer an early graft procedure. This was insufficient to make the necessary causal connection between any action or inaction on Dr. Sinha's part and the plaintiff's subsequent injuries.
We acknowledge that, because the tribunal occurs at the threshold of litigation, the plaintiff may lack information that would later be revealed during discovery. However, even if the plaintiff were given the benefit of the doubt on this missing connection, her offer of proof would still be insufficient because of its failure to address the causation issue discussed next.
Second, the plaintiff did not "establish the applicable standard of care and demonstrate both that a defendant physician breached that standard, and that this breach caused the patient's harm." Palandjian, 446 Mass. at 104. The offer of proof lacks context or explanation about the medical consequences of an improperly-adjusted dermatome instrument. Although Dr. Halvorson is said to have told the plaintiff that a second graft was needed "to promote healing," this falls short of the connection sufficient for the "common knowledge and experience" of lay people. For example, a jury could not be expected to know how thick the human dermis is, or the import of the difference between a graft of eight or twelve thousandths of an inch, on the one hand, and thirty-one thousandths of an inch, on the other. This gap might have been cured by expert testimony, but the plaintiff proffered no expert testimony in support of her claim. Instead, she relied on the facts --particularly the statement in her medical records that the instrument had not been properly calibrated before the first graft -- to establish prima facie negligence by the defendants. The admission fails to do so. Compare Malone, 318 Mass. at 181-182 (where plaintiff coughed up tooth fifteen months after having teeth removed and suffering constant pain in her chest, facts were "such that jurymen out of their common knowledge and experience are able to pass on this question"); Gabrunas v. Miniter, 289 Mass. 20, 22-23 (1935) (based on "common experience and knowledge," jury could have found that ear specialist was negligent in failing to remove bean, which he had seen, from plaintiff's ear) .
We see no error in the tribunal's findings for the defendants.
2. Request for bond reduction.
"The power to reduce the required bond under G. L. c. 231, § 60B, is discretionary with the presiding judge." Little, 376 Mass. at 579, citing Paro, 373 Mass. at 654-654. We review for abuse of that discretion.
"[A]n indigent person should be 'entitled to have the bond reduced to an amount commensurate with [her] ability to pay' . . . in cases where she 'has made a good faith effort to present an offer of proof sufficient to meet the directed verdict standard." Rogers v. Boston, 33 Mass.App.Ct. 328, 329 (1992), quoting Denton v. Beth Israel Hosp., 392 Mass. 277, 280-281 (1984) . "If the judge determines that the offer of proof 'if construed most favorably to the plaintiff, could not support a verdict for the plaintiff,' then he or she may refuse to reduce the bond" (citation omitted). Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 678 (1992). As detailed above, the offer of proof fell short of indicating malpractice caused by the defendants. While the question whether the offer of proof qualified as a "good faith effort to present an offer of proof sufficient to meet the directed verdict standard" is close, we ultimately discern no abuse of discretion in the denial of the plaintiff's motion to reduce the bond.
The plaintiff emphasizes that she made a "good faith" effort, and, having observed her tenacity in both briefing and argument, we do not question the strength of her effort. But, as explained above, that effort nonetheless fell short of what the law required.
Once the plaintiff failed to pay the bond, the action was appropriately dismissed. Farese v. Connolly, 422 Mass. 1010, 1010 (1996) .
Judgment affirmed.
Milkey, Walsh & Hershfang, JJ.
The panelists are listed in order of seniority.