In some personal injury actions, an injured party must provide proof prior to formal litigation. Parties injured by medical negligence must submit proof to a medical malpractice tribunal demonstrating that a health provider defined in Massachusetts G. L. c. 231, § 60B did not conform to good medical practice, resulting in damages. This is a prelude, or truncated version, of what must be done in personal injury civil litigation to successfully obtain damages.
The injured party in this Massachusetts medical malpractice case (16-p-1626) had a robotic-assisted laparoscopic radical prostatectomy in 2012 but continued to experience pain, infection, incontinence, and other problems. After two years, the injured patient sought treatment. An examination showed the presence of a large bladder stone. The injured patient underwent another procedure to remove the stone, in which a Wek Hem-o-Lok clip was discovered inside the stone. Hem-o-Lok clips were used in the prostatectomy in 2012. The injured person then filed suit, alleging medical malpractice and following the procedural requirement of presenting the necessary proof before the medical tribunal.
The injured patient provided the tribunal with medical records and an opinion letter from a board-certified urologist that stated the acceptable standard of care for a qualified urologist to use during a robotic-assisted radical prostatectomy mandated the physician to apply the clip properly, know when a clip was not locked properly or loose, and actively search, find, and fix any clips that loosened during the procedure. The injured person’s expert opined the clip fell loose during the prostatectomy, traveled to the bladder when the bladder neck was open during the surgery, and was left inside the patient as they were closing him up. The doctor concluded the defendant providers violated the applicable standard of care by failing to properly apply the clip, appreciate and recognize the loose clip, actively search for the clip, find the clip in the bladder, and retrieve it prior to closure. The doctor stated this failure resulted in the stone’s formation, pain, infection, and the otherwise unnecessary surgery to remove the clip. Despite this testimony, the tribunal dismissed the claim. The injured person appealed.
The defendant surgeons argued the opinion was conclusory because he did not discuss the radiologists’ failure to detect the clip in CT scans in the months following the initial procedure. The appellate court noted the doctor did refer to these scans. Regardless, the court found that it was improper for the tribunal to determine the weight and credibility of the injured person’s evidence. When a tribunal decision is appealed, the appellate court must look at the evidence previously presented in the light most favorable to the plaintiff. The Appeals Court cited a prior appellate decision that ruled a factually based statement by a qualified expert, without more, is sufficient to meet the tribunal standard.
The defendants also argued on appeal that the mechanism of the injury was speculative, and the injured person’s expert failed to make a causal link between the alleged negligence and the general complaints. The appellate court pointed out that at this phase, there isn’t a lot required to fend off a directed verdict on causation as long as there is a greater likelihood or probability that the harm to the plaintiff stemmed from the defendants’ actions. The court also noted the determination of what is impermissible speculation or permissible inference is not a bright line and must be an informed judgment of the reasonableness of the inference drawn. The Appeals Court vacated the judgment dismissing the injured person’s claims. The matter was remanded with instructions to the superior court to enter a judgment stating the proof offered by the plaintiffs was sufficient to raise a legitimate question of liability, allowing them to proceed forward with their personal injury case.
The Massachusetts personal injury attorneys at Karsner & Meehan have the experience you need in presenting expert testimony and complicated evidence. If you’ve been injured in an accident, call our office today at 508-822-6600.
More Blog Posts:
Massachusetts Workers’ Compensation Reviewing Board Looks at Mental Health Benefits, December 30, 2016, Massachusetts Injury Lawyers Blog
Massachusetts Appeals Court Finds Son Cannot Receive Underinsured Motorist Benefits From Mother’s Policy, December 20, 2016, Massachusetts Injury Lawyers Blog
Federal Circuit Court of Appeals Case Gives Insight on Social Security Disability Determinations, November 18, 2016, Massachusetts Injury Lawyers Blog