Argued: December 8, 2014.
Civil action commenced in the Superior Court Department on October 30, 2012.
A motion to dismiss was heard by Richard E. Welch, III, J.
Barrie E. Duchesneau for the plaintiff.
Allyson N. Hammerstedt for the defendant.
Present: Grainger, Agnes, & Sullivan, JJ.
[29 N.E.3d 205]
The plaintiff, Barbara Goudreault, filed a medical malpractice suit alleging that on February 7, 2011, the defendant radiologist Erik Nine, M.D., failed to properly interpret her mammogram results and recommend necessary follow-up tests, delaying her breast cancer diagnosis and worsening her prognosis. In accordance with G. L. c. 231, § 60B, the matter was referred to a medical malpractice tribunal, with the only issue being that of causation. After a hearing, the tribunal concluded that there was insufficient evidence " to raise a legitimate question of liability appropriate for judicial inquiry." G. L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. For the reasons that follow, we reverse.
We first set out the evidence before the tribunal, in the light most favorable to Goudreault. See Cooper v. Cooper-Ciccarelli, 77 Mass.App.Ct. 86, 91, 928 N.E.2d 672 (2010).
a. Course of diagnosis and treatment.
On July 26, 2010, Goudreault went to Anna Jaques Hospital for a routine bilateral screening mammogram, which was found to be abnormal. The reporting doctor (not the defendant) concluded, relevantly here, that " [i]n the left lower outer breast there [was] a [one-centimeter] ovoid well-defined nodule which [was] new compared to the prior studies," adjacent to which was, in the left upper outer breast, a " small cluster [of] microcalcifications ... associated with a small well defined density." The doctor recommended a bilateral breast ultrasound, spot compression mammograms and true lateral mammograms of both breasts, and magnification mammograms of the left upper outer breast. The doctor's report assessed Goudreault in " category 0" -- " need[s] additional imaging evaluation."
Complying with the recommendation, four days later, on July 30, 2010, Goudreault returned for the diagnostic mammograms and ultrasound. The same doctor [29 N.E.3d 206] (again, not the defendant) reported the findings, which included that " [t]he microcalcifications in the left upper outer breast are two in number and are both rounded. This is not worrisome appearance but they are new since the prior mammogram, and 6-month follow-up is recommended. The small nodular density that they appear to be associated with corresponds to a [normal appearing] lymph node on targeted ultrasound." No further work-up was recommended for the lymph node, and while the doctor concluded that the " [n]ew microcalcifications in the left upper outer breast do not appear suspicious, ... surveillance would be prudent and [a] 6-month follow-up magnification mammogram ...