September 10, 2018.
action commenced in the Superior Court Department on January
motion to dismiss was considered by Linda E. Giles, J., and
entry of separate and final judgment was ordered by her.
E. Duchesneau for the plaintiff.
D. Cassidy for the defendants.
Wichter, for Licia Raymond & others, was present but did
A. Rabin, for Lisa Dunn-Albanese & others, was present
but did not argue.
Present: Wolohojian, Lemire, & Englander, JJ.
issue in this appeal is a medical malpractice tribunal's
conclusion that the plaintiff failed to raise a legitimate
question of liability with respect to Dr. Cara Attanucci and
Dr. Henry Lerner, both of whom were involved in the care of
the plaintiff's decedent, Natasha Feliciano
(Feliciano) at Newton-Wellesley Hospital, where
Feliciano died after protracted, and then arrested, labor, an
emergency bedside cesarean section, and a subsequent
emergency bedside hysterectomy. We vacate the judgment of
summarize the evidence in the plaintiff's offer of proof
in the light most favorable to the plaintiff. Blake
v. Avedikian, 412 Mass. 481, 484 (1992),
citing Kopycinski v. Aserkoff, 410
Mass. 415, 417-418 (1991). Feliciano, a healthy twenty-nine
year old mother of two children, was thirty-eight and
one-half weeks pregnant with her third child when she
presented herself at Newton-Wellesley Hospital at 11:28 P..M.
on August 10, 2014, complaining of labor. She died at the
hospital twenty-five hours later from hemorrhagic shock,
disseminated intravascular coagulation,  and amniotic
fluid embolism.Summarized in general layman's terms,
Feliciano died because (a) the defendants failed to timely
recognize that her condition required a cesarean section, and
Feliciano "coded," (b) the defendants failed to
ensure, after performing an emergency bedside perimortem
cesarean section, that Feliciano's abdomen be left open
to monitor for uterine bleeding and failed to place her in or
near an operating room in case an emergency hysterectomy was
also required,  (c) the defendants failed thereafter to
sufficiently monitor her and failed to recognize that her
condition necessitated a hysterectomy until after she again
"coded," (d) the defendants waited too long to
perform the emergency hysterectomy, and (e) the defendants
performed the emergency hysterectomy in Feliciano's bed
and without proper medical tools (such as a scalpel) because
of the delay in performing the procedure and because of the
earlier failure to place her in or near an operating
room. The plaintiff's expert's opinion
is that the defendants' medical treatment fell below the
accepted standard of care and resulted in Feliciano's
injury, suffering, and premature and preventable death. We
set out additional facts below as they relate to the specific
arguments raised on appeal.
plaintiff filed this medical malpractice and wrongful death
action against (among others) a number of doctors and nurses
who were involved in Feliciano's treatment at
Newton-Wellesley Hospital. The plaintiff's offer of proof
included the detailed expert opinion of Dr. S. Jason Kapnick,
a licensed physician board certified in obstetrics and
gynecology and gynecological oncology, together with his
curriculum vitae. It also included medical records from
Newton-Wellesley Hospital, fetal monitoring strips, an
autopsy report from Massachusetts General Hospital, and
Feliciano's death certificate. After a hearing, a medical
malpractice tribunal found that the evidence did not raise a
legitimate question of liability with respect to
Newton-Wellesley Obstetrics and Gynecology, P.C., and with
respect to two of the individual physicians, Dr. Cara
Attanucci and Dr. Henry Lerner. After the plaintiff failed to
post a bond with the Superior Court, see G. L. c. 231, §
60B, the claims against Drs. Attanucci and Lerner, as well as
those against Newton-Wellesley Obstetrics and Gynecology,
P.C., were dismissed, and a separate and final judgment
entered pursuant to Mass. R. Civ. P. 54 (b), 365
Mass. 820 (1974). At issue before us are only the claims
against Drs. Attanucci and Lerner.
plaintiff's offer of proof shall prevail before a medical
malpractice tribunal (1) if the defendant is a health care
provider as defined in G. L. c. 231, § 60B,
Santos v. Kim, 429 Mass. 130,
133-134 (1999),  "(2) if there is evidence that the
[health care provider's] performance did not conform to
good medical practice, and (3) if damage resulted
therefrom," Kapp v.
Ballantine, 380 Mass. 186, 193 (1980). The tribunal
is not to engage in weighing the evidence or determining
credibility, Keppler v. Tufts, 38
Mass.App.Ct. 587, 589 (1995), and "[a]ny factual dispute
as to the meaning of the record is for the jury."
Rahilly v. North Adams Regional
Hosp., 36 Mass.App.Ct. 714, 723 (1994), quoting
Kopycinski, 410 Mass. at 418.
task of the medical malpractice tribunal is a
"narrow" one, in which "the tribunal should
simply examine the evidence proposed to be offered on behalf
of the patient to determine whether that evidence, 'if
properly substantiated, '" (citation omitted),
McMahon v. Glixman, 379 Mass. 60,
69 (1979), "is sufficient to raise a legitimate question
of liability appropriate for judicial inquiry or whether the
plaintiff's case is merely an unfortunate medical
result." G. L. c. 231, § 60B. "[T]he evidence
presented by the offer of proof is viewed by a standard
comparable to a motion for a directed verdict, that is, in a
light most favorable to the plaintiff." Blake,
412 Mass. at 484, citing Kopycinski, 410 Mass. at
415, 417-418. "That standard is whether 'anywhere in
the evidence, from whatever source derived, any combination
of circumstances could be found from which a reasonable
inference could be drawn in favor of the
plaintiff.'" Dobos v.
Driscoll, 404 Mass. 634, 656, cert, denied, 493 U.S.
850 (1989), quoting Poirier v.
Plymouth, 374 Mass. 206, 212 (1978).
the tribunal's role vis-a-vis the plaintiff's
evidence is comparable to the directed verdict standard in
the sense that the plaintiff's offer of proof is to be
viewed in the light most favorable to the plaintiff, the
standards are not "one and the same."
Kopycinski, 410 Mass. at 415. It is important to
remember that the tribunal's evaluation of the
plaintiff's offer of proof occurs at a very different
stage of the litigation than does a judge's evaluation of
the evidence on a motion for directed verdict. Whereas a
motion for directed verdict comes after discovery has been
completed, the plaintiff's legal claims and theories have
been tested through pretrial dispositive motions, expert
opinions have been tested and vetted through Lanigan
motions, see Commonwealth v.
Lanigan, 419 Mass. 15, 26 (1994), and the
plaintiff's witnesses and documentary evidence have been
admitted and cross-examined at trial, the offer of proof
before the tribunal is made without the benefit of discovery
and at the earliest stage in the life of the litigation --
even before motions to dismiss. For this reason, the statute
explicitly contemplates that a plaintiff's offer of proof
to the tribunal need not meet the full evidentiary burden of
proof at trial; instead, the offer of proof, taken in the
light most favorable to the plaintiff, need only be
sufficient to raise a legitimate question of liability, with
proper evidentiary substantiation to follow. See, e.g.,
McMahon, 379 Mass. at 69. This principle is directly
reflected in the language of the statute, which highlights
that the evidence in the offer of proof will be the subject
of future substantiation in the course of litigation. See G.
L. c. 231, § 60B ("said tribunal shall determine if
the evidence presented if properly substantiated is
sufficient to raise a legitimate question of liability"
[emphasis added]). Thus, at this stage, we do not require
that the plaintiff's proof be complete, merely that it be
enough to "raise a legitimate question of liability
appropriate for judicial inquiry." Id. In
short, not all factual questions need be answered or resolved
at this stage.
with this, the admission of expert opinion before the
tribunal is not subject to the same strictures as are
required for admission at trial. Indeed, "[t]he standard
for admission of expert testimony before a medical
malpractice tribunal is an extremely lenient one."
Halleyv.Birbiglia, 390 Mass.
540, 543 n.4 (1983). Heymanv.Knirk, 35 Mass.App.Ct. 946, 947-948 (1993).
"[T]he tribunal may not refuse to accept an expert's
opinion unless the plaintiff's offer of proof is so
deficient that as a matter of law it would be improper for
any judge to admit it." Nickersonv.Lee, 42 Mass.App.Ct. 106, 111 (1997). Extrinsic
evidence is not required to substantiate the factual
statements in an expert's opinion, and "a factually