Paretchan v. Kwasnik

By the Court (Vuono, Sullivan & Lemire, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28

The plaintiff brought a medical malpractice action against Dr. Edward Kwasnik, a surgeon who performed a laparoscopic cholecystectomy on her, and Dr. Gaurav Sharma, a surgical resident who assisted Dr. Krasnik during the procedure. The plaintiff experienced complications for a month after the procedure with repeat hospital visits, tests, and ultimately a surgery to repair a bile duct disruption. A medical malpractice tribunal determined that the offer of proof was insufficient to raise a legitimate question of liability as to both defendants. After the plaintiff failed to post a bond, and judgment entered for the defendants, the plaintiff appealed. For the reasons set forth below, we reverse.

We briefly summarize the factual background. The plaintiff had a history of symptomatic gallstones with multiple attacks. On October 19, 2012, the defendants performed a laparoscopic cholecystectomy on the plaintiff, i.e., a removal of the gallbladder. Her worsening abdominal pain, nausea, and vomiting after discharge led the plaintiff to seek medical attention including multiple emergency room visits. An exploratory laparotomy was subsequently performed and a right anterior bile duct disruption was found. The plaintiff underwent surgery to repair this injury.

The plaintiff's offer of proof at the tribunal consisted of her medical records and an opinion letter of Dr. Steven Becker, a surgeon from New Jersey. In his opinion letter, Dr. Becker concluded that the standard of care was violated during the plaintiff's gallbladder removal surgery when the defendants failed to properly visualize and identify the bile ducts and other biliary structures, causing injury to the right anterior bile duct.

Discussion. A plaintiff's offer of proof as to negligence will prevail before a medical malpractice tribunal if she (1) shows that the defendant is a provider of health care; (2) demonstrates that the health care provider did not conform to good medical practice; and (3) establishes resulting damage. See Saunders v. Ready, 68 Mass. App. Ct. 403, 403-404 (2007). In reviewing the tribunal's determination, we apply a directed verdict standard and ask whether, from the evidence in the plaintiff's offer of proof, "any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Joudrey v. Nashoba Community Hosp., Inc., 32 Mass. App. Ct. 974, 975 (1992), quoting from Glicklich v. Spievack, 16 Mass. App. Ct. 488, 489-490 (1983).

There is no dispute that the defendants are health care providers. The sole issues on appeal then are whether the offer of proof shows that the defendants' treatment did not conform to good medical practice, and causation. In his expert opinion, Dr. Becker discusses the presence of these requirements. He first describes the appropriate standard of care required of the defendants for the procedure. He then concludes, in essence, that the type of injury the plaintiff suffered could only have occurred as a result of the defendants' failure to apply this standard. The defendants argue that Dr. Becker's opinion concerning the defendants alleged deviation from the standard of care and the causal link to the plaintiff's injury are conclusory, leaving these required elements to be impermissibly based on speculation.

"In circumstances such as the facts here, the necessary elements can be proved only by reasonable inferences drawn from the offer of proof." Saunders, supra at 405 (expert opinion that injury could only have resulted from defendant's failure to apply appropriate standard of care was sufficient to pass tribunal stage). "The line between impermissible speculation and permissible inference is not a clearly marked, bright line. Rather, it is one that must turn on an informed judgment of the reasonableness of the inference drawn." Id. at 406.

In evaluating Dr. Becker's analysis of the operation, we cannot, at this early stage, discern whether an inference of negligence is unreasonable. As we opined in Saunders, supra at 406, "[i]t may transpire that, at the trial stage, [the expert's opinion] will be shown to be greatly oversimplified, but in our opinion that is not a conclusion that should be drawn on the record before the tribunal." The plaintiff's offer of proof is thus sufficient to pass the tribunal stage.

The judgment dismissing the plaintiff's claims against the defendants is vacated. The matter is remanded to the Superior Court where the findings of the tribunal are to be replaced by the decision of this court and a determination shall enter that the offer of proof by the plaintiff, if properly substantiated, is sufficient to raise a legitimate question of liability appropriate for judicial inquiry. Thus, the plaintiff may proceed with her claims.

So ordered.

By the Court (Vuono, Sullivan & Lemire, JJ.),

/s/

Clerk Entered: January 3, 2017.