Massachusetts Appeals Court Finds that Patient’s Offer of Proof Was Sufficient to Proceed to Trial in Medical Malpractice Case – Paretchan v. Kwasnik

Under Massachusetts law, a person who alleges that his or her physician committed an act of medical negligence must submit an offer of proof to a medical malpractice tribunal in order for his or her lawsuit to move forward. If the tribunal decides that there is not sufficient evidence to support the plaintiff’s claim, the plaintiff has the option of posting a cash bond in order to proceed to trial. The bond, of course, is designed to deter patients from proceeding.

Alternatively, the plaintiff can allow the trial court to dismiss the case and then file an appeal, as happened in a recently decided case. An appeals court has the authority to decide whether or not the tribunal was correct in its decision regarding the sufficiency of the plaintiff’s evidence.

Facts of the Case

In the (unreported) case of Paretchan v. Kwasnik, the plaintiff was a patient who believed that she had been hurt as a result of medical negligence. She filed a medical malpractice action, alleging that the defendants, a surgeon and a surgical resident, had caused a disruption to her bile duct during a laparoscopic cholecystectomy (gallbladder removal). The medical malpractice tribunal found that the plaintiff’s offer of proof was insufficient to raise a legitimate question of liability. The plaintiff did not post a bond thereafter. The trial court ruled in the defendants’ favor on their motion for a judgment, and the plaintiff appealed.

Decision of the Court of Appeals

On appeal, the Commonwealth of Massachusetts Appeals Court reversed the trial court’s decision in the defendants’ favor. The court first reviewed the plaintiff’s order of proof before the tribunal, namely a letter of opinion from a New Jersey surgeon who concluded that the defendants had violated the standard of care during the plaintiff’s surgery because they had did not visualize and identify the plaintiff’s bile ducts and other structures in an appropriate manner.

The court went on to explain the proof necessary to prevail before the tribunal: that the defendant was a health care provider, that the defendant did not conform to good medical practice, and that there was an injury as a result. There being no dispute as to the first issue, the court then focused its analysis on the issues of the defendants’ lack of conformity to good medical practice and causation.

Although the defendants argued that the expert’s opinions were conclusory and impermissibly based on speculation, the appellate court disagreed. Quoting prior case law to the effect that “the necessary elements can be proved only by reasonable inferences,” the court noted that there was a clear, bright line between a permissible inference and impermissible speculation. Evaluating the expert’s review of the plaintiff’s operation (in which he concluded that the plaintiff’s particular injury would only result from a deviation from the standard of care), the court was not willing to say that his inference of negligence was unreasonable. Thus, the plaintiff’s offer of proof was sufficient to pass the tribunal stage, and she should have been allowed to proceed to trial.

Have You Been a Victim of Medical Malpractice?

Despite years of education, training, and practice, doctors can still make mistakes, as all human beings do. If you or a loved one has been hurt by a mistake in medical judgment, a misdiagnosis, inattention, or another act of carelessness, you should talk to an attorney about the possibility of filing a negligence action. The knowledgeable Cape Cod medical malpractice attorneys at the Law Offices of John C. Manoog, III, can help. Call us at (888) 262-6664 to set up an appointment to discuss your case. We have offices in both Plymouth and Hyannis.

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