Feliciano v. Attanucci , 95 Mass. App. Ct. 34 ( 2019 )

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17-P-1568 Appeals Court
JESUS FELICIANO, personal representative,1 vs. CARA ATTANUCCI
& another.2
No. 17-P-1568.
Suffolk. September 10, 2018. - March 11, 2019.
Present: Wolohojian, Lemire, & Englander, JJ.
Medical Malpractice, Tribunal, Appeal, Expert opinion.
Negligence, Doctor, Medical malpractice, Expert opinion.
Evidence, Expert opinion. Witness, Expert.
Civil action commenced in the Superior Court Department on
January 29, 2016.
A motion to dismiss was considered by Linda E. Giles, J.,
and entry of separate and final judgment was ordered by her.
Barrie E. Duchesneau for the plaintiff.
John D. Cassidy for the defendants.
Lisa Wichter, for Licia Raymond & others, was present but
did not argue.
Noah A. Rabin, for Lisa Dunn-Albanese & others, was present
but did not argue.
1 Of the estate of Natasha Feliciano.
2 Henry Lerner.
2
WOLOHOJIAN, J. At 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)3 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 dismissal.
We 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
3 The plaintiff and the plaintiff's decedent share a
surname. For clarity, we refer hereafter to Jesus Feliciano as
the plaintiff and to Natasha Feliciano as Feliciano.
3
intravascular coagulation,4 and amniotic fluid embolism.5
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,6 (c) the defendants failed
4 According to the plaintiff's expert, Dr. S. Jason Kapnick,
"[d]isseminated intravascular coagulation is a process that
describes widespread activation of the clotting cascade that
results in the formation of small clots in small blood vessels
throughout the body."
5 The plaintiff's expert stated that
"[a]mniotic fluid embolism is a rare but serious
complication that can occur during labor and delivery. An
amniotic fluid embolus occurs when amniotic fluid or fetal
material including hair, nails, fetal cells, and/or vernix
enters the maternal bloodstream. This occurs during labor
or immediately after delivery. Symptoms indicating a
potential amniotic fluid embolism include sudden shortness
of breath, pulmonary edema, sudden cardiovascular collapse,
disseminated intravascular coagulation, altered mental
status, tachycardia, fetal distress, abnormal maternal
heart rate, seizures, nausea, and/or vomiting. Risk
factors for amniotic fluid embolus include the following:
placental problems -- previa or abruption, preeclampsia,
induction of labor with medications, and a tumultuous
labor, as in Ms. Feliciano's case."
6 According to the plaintiff's expert,
"[a]fter a peri-mortem bedside cesarean section is
performed in response to a presumed amniotic fluid embolus
4
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.7 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.
and ensuing [disseminated intravascular coagulation] is
anticipated, then the accepted standard of care requires
the obstetrician and/or maternal fetal medicine physician
to leave the patient's abdomen open to directly visualize
and appreciate uterine tone, and move the patient to the
recovery room nearest to the operating room in the event an
emergent hysterectomy is required. Additionally, if the
main source of severe bleeding is from the uterus, as in
Ms. Feliciano's case, then the standard of care requires
the average qualified obstetrician and/or maternal fetal
medicine physician, to order and perform an emergent
hysterectomy if the bleeding is unable to be controlled to
save the patient's life."
7 The plaintiff's expert noted that "[a]s a result of
waiting this long, Dr. Raymond [the surgeon] manually removed
the staples, and the cesarean incision was opened manually as
well due to the lack of necessary tools, including a scalpel,
that were absent in the ICU room."
5
The 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.8
8 The plaintiff did not identify Newton-Wellesley Obstetrics
and Gynecology, P.C., in his notice of appeal, nor does he make
any argument on appeal with respect to the dismissal of the
claim against the professional corporation.
6
A 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,9 see Santos v. Kim,
429 Mass. 130, 133-134 (1999),10 "(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.
9 General Laws c. 231, § 60B, provides in relevant part:
"For the purposes of this section, a provider of health
care shall mean a person, corporation, facility or
institution licensed by the commonwealth to provide health
care or professional services as a physician, hospital,
clinic or nursing home, dentist, registered or licensed
nurse, optometrist, podiatrist, chiropractor, physical
therapist, psychologist, social worker, or acupuncturist,
or an officer, employee or agent thereof acting in the
course and scope of his employment."
10In Santos, 429 Mass. at 132-133, the Supreme Judicial
Court stated that "[§] 60B does not require the existence of a
doctor-patient relationship as a predicate for its application,"
and that "[t]he term doctor-patient relationship," although it
has "become boilerplate[,] . . . is unfortunate." Accordingly,
we do not use the "doctor-patient relationship" formulation of
Kapp v. Ballantine, 380 Mass. 186, 193 (1980). See Saunders v.
Ready, 68 Mass. App. Ct. 403, 404 (2007).
7
The 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).
Although the tribunal's role vis-à-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
8
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
9
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.
Consistent 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." Halley v. Birbiglia, 390
Mass. 540, 543 n.4 (1983). Heyman v. 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." Nickerson v. 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
based statement by a qualified expert, without more, is
sufficient to meet the tribunal standard" (emphasis added).
Booth v. Silva, 36 Mass. App. Ct. 16, 21 (1994).
With these legal principles in mind, we turn to examining
the specifics of the offer of proof with respect to Drs.
Attanucci and Lerner. As to Dr. Attanucci, the offer of proof
sufficiently established that she was a health care provider to
10
Feliciano: Dr. Attanucci assisted in the emergency perimortem
bedside cesarean section.11 See Lambley v. Kameny, 43 Mass. App.
Ct. 277, 283 (1997) ("The essence of the doctor-patient
relationship is the undertaking by a physician to diagnose
and/or treat the person being diagnosed or treated with
reasonable professional skill"). A legitimate question of Dr.
Attanucci's liability was raised by the opinion of the
plaintiff's qualified expert that Dr. Attanucci deviated from
the accepted standard of care when she (along with others)
"failed to leave Ms. Feliciano's abdomen open for close
monitoring and evaluation of uterine bleeding," failed "to keep
Ms. Feliciano in the operating room or in the nearest recovery
unit, so that all necessary tools were readily available in the
event an emergency hysterectomy was required," and, upon
recognition of uterine atony, "failed to perform an emergent
hysterectomy." Furthermore, Dr. Kapnick opined that these
deviations from the standard of care resulted in harm to
11The operative report of the emergency cesarean section,
prepared by Dr. Raymond, shows that Dr. Attanucci responded to
the "code blue" and acted as second assistant in the surgery.
The record does not state that the doctor's relationship ended
(or, if so, when), nor does it support the defendants'
contention that Dr. Attanucci acted merely as a de facto "scrub
nurse," which, in any event, is a factual dispute not amenable
to disposition by the tribunal. Contrast St. Germain v.
Pfeifer, 418 Mass. 511, 520 (1994) (where patient transferred
out of doctor's care and there was no evidence of treatment
after that transfer, no doctor-patient relationship existed).
11
Feliciano, including her premature and preventable death.
Nothing more was required to raise a legitimate question of
liability with respect to Dr. Attanucci.
The same is true of Dr. Lerner, who (along with others)
performed a bedside laparotomy and assisted in the emergency
hysterectomy. He was also present at Feliciano's bedside when
she died. On these bases, the offer of proof was sufficient to
establish that Dr. Lerner was a provider of health care to
Feliciano. See Lambley, 43 Mass. App. Ct. at 283-284. As to
liability, Dr. Kapnick opined that Dr. Lerner (along with
others) "waited far too long in performing an emergency
hysterectomy in the ICU bed." An opinion of delay such as this
is sufficient as an offer of proof. See Kopycinski, 410 Mass.
at 418 (element satisfied by expert affidavit alone); Rahilly,
36 Mass. App. Ct. at 722 (allegation of delay sufficient).
Although extrinsic evidence is not necessary to support the
expert's opinion at this stage, we note that such evidence was
present here. The medical records show that the emergency
hysterectomy was not performed until approximately one hour
after the medical records indicate Dr. Lerner arrived for the
procedure, and that Feliciano's condition necessitated a
hysterectomy by the time Dr. Lerner arrived. On this basis, a
sufficient question of liability against Dr. Lerner was raised
by the offer of proof.
12
Dr. Kapnick also opined that Dr. Lerner (along with others)
failed to frequently assess Feliciano for active vaginal
bleeding, failed to monitor her in the recovery room, failed to
consult with an interventional radiologist regarding the need
for arterial embolization, and failed to recognize or appreciate
when the massive transfusion protocol failed to reverse her
coagulopathy.12 Given the medical record's silence about when,
precisely, Dr. Lerner's involvement with Feliciano's care began,
we note that it is a closer question with respect to these
additional theories of liability against him. But, again, these
are matters to be determined after discovery, when the precise
beginning of Dr. Lerner's involvement in Feliciano's care will
be learned. That factual question should not have been decided
against the plaintiff, without the benefit of discovery, at this
stage.
The findings of the tribunal as to Dr. Attanucci and Dr.
Lerner are to be replaced by the decision of this court that the
offer of proof of the plaintiff, if properly substantiated, is
sufficient to raise a legitimate question of liability
12It is true, as the dissent points out, that these same
bases of liability are alleged against many of the other
defendants. But that neither surprises nor concerns us; the
medical record shows that the defendants (at different moments
and in different combinations) were all involved in Feliciano's
care, and that the medical events at issue took place over a
short span of time.
2
appropriate for judicial inquiry. The judgment of dismissal as
to Dr. Attanucci and Dr. Lerner is vacated, and the plaintiff
may proceed with his claims.
So ordered.
ENGLANDER, J. (dissenting in part). The question is
whether the plaintiff's offer of proof contained sufficient
evidence to raise a legitimate question of liability with
respect to Drs. Attanucci and Lerner, two of the many doctors
that were involved in the care of the patient, the plaintiff's
decedent.1 G. L. c. 231, § 60B.
As to Dr. Attanucci, I concur that the offer of proof was
sufficient. The medical records show that Dr. Attanucci
assisted in the care of the patient during an emergency cesarean
section, which occurred at approximately 2 P.M. on the day in
question. The expert submission from Dr. Kapnick opines as to
several breaches of the standard of care that occurred during
that operation or during the patient's postoperative care.
Given that Dr. Attanucci assisted with the cesarean section, Dr.
Kapnick's opinions as to Dr. Attanucci's breaches are sufficient
to meet the applicable standard. See Little v. Rosenthal, 376
Mass. 573, 578 (1978).
The same is not true for Dr. Lerner, however, and I
respectfully dissent from the majority's conclusion as to him.
The only mention of Dr. Lerner in the medical records is that he
appeared at the patient's bedside at 9:25 P.M., when the patient
1 The tribunal concluded that there was sufficient evidence
as to several defendants other than Drs. Attanucci and Lerner.
2
was already in extremis, and well after the breaches identified
by Dr. Kapnick had already occurred. There is nothing in the
medical records that shows that Dr. Lerner had any knowledge
prior to 9:25 P.M. of the patient's circumstances on that day,
or of the care she was receiving. Moreover, there is no
contention in Dr. Kapnick's expert submission that the care
provided after Dr. Lerner arrived at 9:25 P.M. was in any way
deficient. The failures the expert alleges all occurred many
hours prior to 9:25 P.M.
The medical malpractice tribunal was established to provide
a screening process for medical malpractice complaints, in order
to "discourage frivolous claims whose defense would tend to
increase premium charges for medical malpractice insurance."
McMahon v. Glixman, 379 Mass. 60, 68 (1979), quoting Austin v.
Boston Univ. Hosp., 372 Mass. 654, 655 n.4 (1977). The
plaintiff submits an "offer of proof," which is evaluated for
whether it provides sufficient evidence to satisfy a standard
comparable to a "directed verdict" standard. See Little, 376
Mass. at 577-579; Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct.
86, 91 (2010). The standard of proof is not stringent, but it
is not without teeth; the plaintiff must come forward with
evidence "to raise a legitimate question of liability
appropriate for judicial inquiry." G. L. c. 231, § 60B.
3
The majority concludes that the offer of proof is
sufficient as to Dr. Lerner in part because it articulates a
very relaxed standard of proof. In particular, the majority
seems to assert that statements made by experts must be accepted
by the tribunal, even if those statements are not supported by
the medical records. A standard that requires that statements
in expert opinions be accepted, even when not substantiated by
the documentary record, is not consistent with the statutory
scheme or our case law.
First, the statutory scheme contemplates a screening
process where evidence will be presented, and where that
evidence will be evaluated, to some degree, and not just
accepted. Thus the statute expressly refers to the submission
of "evidence," and it goes on to define the types of "evidence"
that are "admissible." G. L. c. 231, § 60B. It describes means
for the tribunal "to substantiate or clarify any evidence which
has been presented before it." Id. This process obtains
despite the absence of discovery. The statute even references a
standard -- "substantial evidence" -- which "shall mean such
evidence as a reasonable person might accept as adequate to
support a conclusion." Id.
Thus, the language and structure of G. L. c. 231, § 60B,
contemplate a role for the tribunal that is evaluative, and that
involves more than the undiscerning acceptance of the assertions
4
in an offer of proof. This more evaluative role has been
reflected in the case law, from very early on. Thus, in Little,
376 Mass. at 578, the Supreme Judicial Court expressly rejected
the plaintiff's assertion that the tribunal should apply a
standard analogous to that applied to a motion to dismiss. The
court analyzed the statutory scheme and concluded that "the
tribunal's mandate is to evaluate evidence." Id. It stated
that the tribunal's task should be compared "to the trial
judge's function in ruling on a defendant's motion for directed
verdict," and it went on to affirm the tribunal's conclusion
that the offer of proof was insufficient. Id. Two years later,
in Kapp v. Ballantine, 380 Mass. 186, 191-193 (1980), the court
applied the standard from Little in concluding that the
plaintiff's offer of proof was sufficient as to some defendants,
but not others. Relevant here, the court held as to one
defendant, Dr. Levy, that the contention that he was "part of a
consulting team" was insufficient, where the evidence did not
support the contention that Dr. Levy had participated in the
medical care claimed to be deficient. Id. at 195.
The decisions of this court have applied this evaluative
standard as well; notably, the standard has been applied to
reject offers of proof even where they are supported by an
expert report. Thus, in LaFond v. Casey, 43 Mass. App. Ct. 233,
237 (1997), this court affirmed a tribunal's rejection of an
5
offer of proof that was supported by an expert opinion; the
opinion stated that doctors had breached the standard of care
during a childbirth, and had thereby subjected the newborn baby
to "prolonged hypoxia." This court agreed the offer was
nevertheless insufficient, concluding that the expert's opinion
"is based upon an assumption of facts that have no roots in the
evidence." Id. And in Cooper, 77 Mass. App. Ct. at 92-93, this
court again rejected an offer of proof because the expert's
opinion was "not rooted in the evidence." In affirming the
tribunal, we noted that "the deficiency in Dr. Sargent's opinion
is not revealed merely by his lack of specificity in fixing the
defendant's standard of care, but rather because his opinion
lacked any consideration of the defendant's actual conduct in
seeking out the higher expertise of the radiologists with whom
she consulted" (emphasis supplied). Id. at 93.2
2 The majority's view of the standard appears to be
influenced by statements in the cases to the effect that the
tribunal should not "determine credibility" or "weigh the
evidence." See, e.g., Blood v. Lea, 403 Mass. 430, 433 n.5
(1988); Kapp, 380 Mass. at 191. But one can agree with those
principles without also concluding that an expert's opinion must
be accepted even where it is inconsistent with, or not supported
by, the medical records. Indeed, the case law contains several
examples where an expert opinion has not been so accepted,
because, as here, the opinion is founded upon facts or
assumptions not supported by other evidence before the tribunal.
The statement the majority cites from Booth v. Silva, 36 Mass.
App. Ct. 16, 21 (1994), accordingly must be understood as
stating only that a factually based statement of an expert can
be sufficient to meet the standard, not that it must be so
accepted. Indeed, in Booth the facts that were challenged in
6
Here, consistent with the standards and case law described
above, the tribunal separately considered the facts as to each
defendant, and concluded that although the offer was sufficient
as to several defendants, it was not sufficient as to Dr.
Lerner. In my view, that conclusion was correct. The expert's
submission indiscriminately lumps Dr. Lerner with several of the
other doctors, asserting that Dr. Lerner should have taken
certain steps in connection with events, such as the cesarean
section, that took place several hours before Dr. Lerner arrived
at the patient's bedside. Thus, the expert asserts, for
example, that Dr. Lerner failed to "monitor Ms. Feliciano in the
recovery room" after the cesarean section, and concludes that he
failed to "promptly perform a hysterectomy" "no later than 4:30
P.M." But the expert's submission does not offer any basis for
believing that Dr. Lerner had any involvement with the patient's
care at those times. As to Dr. Lerner the submission is, as the
judge on the tribunal observed, a cut and paste job. It fails
to show a provider-patient relationship at a relevant time, and
it accordingly fails to present evidence that Dr. Lerner
deviated from the applicable standard of care. No reasonable
the expert opinion actually were independently found in the
record. Id. at 18-19 & nn.5, 6.
7
fact finder could find Dr. Lerner liable, on the facts presented
with the offer of proof.
The majority rests its contrary conclusion on the expert's
statement that Dr. Lerner (along with others) "waited far too
long in performing an emergent hysterectomy in the ICU bed."
But the expert's more detailed contention was that the
hysterectomy should have been performed "no later than 4:30
P.M." -- a time when there was no evidence that Dr. Lerner was
yet involved. In such circumstances the expert's assertion that
Dr. Lerner was in breach of the standard of care need not be
accepted, because it is not "rooted in the evidence." Such is
the kind of evaluation of evidence that is contemplated by the
statute, and confirmed in cases such as Cooper, 77 Mass. App.
Ct. at 93, and LaFond, 43 Mass. App. Ct. at 237.
Finally, the majority posits that even if Dr. Lerner did
not arrive at the patient's bedside until 9:25 P.M. (as
reflected in the medical records), in any event the hysterectomy
was not performed until one hour later, and this one-hour delay
was itself sufficient to satisfy the standard. The contention
that liability hinges on a delay from 9:25 P.M. to 10:40 P.M.,
however, is not set forth in Dr. Kapnick's expert opinion, nor
is such an argument made in the plaintiff's brief. To make an
adequate showing the plaintiff would have to establish that this
one-hour delay could have caused the patient's death, see
8
Bradf. v. Baystate Med. Center, 415 Mass. 202, 206-208 (1993);
Keppler v. Tufts, 38 Mass. App. Ct. 587, 590-591 (1995), and the
plaintiff has not done so. Indeed, there is no support in the
record for the contention that any care that was provided after
Dr. Lerner arrived at 9:25 P.M. was causally related to the
patient's death. The tribunal's conclusion accordingly should
not be overturned on that ground.
For these reasons, I would vacate the judgment as to Dr.
Attanucci, but affirm it as to Dr. Lerner.