When a plaintiff’s medical malpractice case was dismissed following a medical malpractice tribunal’s conclusion that her offer of proof was “not sufficient to raise a legitimate question of liability appropriate for judicial inquiry,” the plaintiff appealed. The Massachusetts Appeals Court vacated the dismissal, finding that the plaintiff’s proffered evidence, though disputed by the defendant surgeon, was sufficient for a jury’s consideration.
In Abrea-Riley v. Lerner, the 44-year-old plaintiff presented to her gynecologist complaining of chronic pelvic pain. Her doctor recommended an operative laparoscopy to evaluate the pelvis, to possibly free up scar tissue and to potentially remove the plaintiff’s ovaries. The plaintiff provided informed consent to the recommended procedure.
However, instead of the planned procedure, the defendant surgeon performed a diagnostic laparoscopy, and then a second laparoscopy, where he performed a lysis of bowel adhesions and an ovarian cyst resection. As a result, the plaintiff suffered severe abdominal pain and presented to the hospital two days following the surgery. The defendant surgeons performed an emergency laparotomy after finding a hole in the plaintiff’s small bowel, next to the area they had operated on two days prior. The plaintiff was hospitalized a number of times thereafter, and continued to suffer from abdominal and pelvic pain.
Through expert opinion, the plaintiff alleged that the surgeon deviated from the standard of care in two ways: first, by failing to treat the issues as originally planned, and second, by failing to recognize the bowel injuries they caused during the second laparoscopy. The defendants contended that they exercised great care, and that the bowel perforation could not have been identified at the time of the surgery.
The medical malpractice tribunal agreed with the defendants, but the Appeals Court did not. Noting that the medical malpractice tribunal’s role is to evaluate the sufficiency of a plaintiff’s offer of proof – in the light most favorable to the plaintiff – the Appeals Court found that there was a legitimate dispute of the material facts of the case on which a verdict could turn. For that reason, the decision as to the sufficiency of the plaintiff’s proffer should weigh in the plaintiff’s favor, leaving the issue of negligence to a jury to determine in consideration of all of the evidence. Because it found that the plaintiff had met that evidentiary threshold at the medical malpractice tribunal, the Appeals Court vacated the dismissal of the case, allowing the lawsuit to proceed.
This case demonstrates the importance of presenting competent evidence early on in a medical malpractice case that is sufficient to meet the plaintiff’s early burden before a medical malpractice tribunal. Notwithstanding, a tribunal must take care in its consideration of evidence in such cases, so as not to improperly remove the ultimate issue of medical negligence from the hands of a jury.