29 Mass. App. Ct. 996 | Mass. App. Ct. | 1990
On appeal, the plaintiff Johnston does not assert, as part of her medical malpractice claim, that the surgical procedure which Dr. Stein, the defendant, performed on her back was negligently executed. Rather, she ascribes negligence to the decision to do the operation and casts her claim in terms of Dr. Stein having “misrepresented” her condition. Thus misled, Johnston complains that she was not capable of having given informed consent to the surgery. Johnston’s claim was placed before a medical malpractice tribunal (see G. L. c. 231, § 60B) which, upon examination of the offer of proof, determined that she had not raised a legitimate question of liability warranting judicial inquiry. Johnston did not file a bond and, upon the expiration of more than thirty days after entry of the tribunal’s finding, the complaint was dismissed. G. L. c. 231, § 60B.
2. Adequacy of offer of proof to the tribunal. The applicable standard is familiar. Would the materials (expert opinions, depositions, hospital records, affidavits, etc.) submitted' in an offer of proof to the medical malpractice tribunal, if substantiated at trial, be sufficient to withstand a motion for a directed verdict? Little v. Rosenthal, 376 Mass. at 578. Kapp v. Ballantine, 380 Mass. 186, 191-192 (1980). Flagg v. Scott, 9 Mass. App. Ct. 811 (1980). DiNozzi v. Lovejoy, 20. Mass. App. Ct. 973 (1985). Apart from Dr. Stein’s impression of disc herniation, there were three medical opinions offered to the tribunal. Dr. Brendler had examined the patient for the workers’ compensation insurer. He wrote that both the preoperative and the postoperative myelograms looked normal to him. He does not say that Dr. Stein misdiagnosed Johnston’s condition, that the surgery was ill advised, or that her treatment had departed from the applicable standard of care. Dr. Brendler gives his opinion that CAT scans made in 1983 do not demonstrate ruptured discs. The surgery, however, was done in 1982 and had removed the ruptured disc. Dr. Wespic, who furnished an opinion to Johnston’s counsel, said only that “[o]n the preoperative myelogram I see no specific abonormalities which I can be sure of.” He did not state that there had been any deviation from applicable standards of care, that surgery had been unnecessary, or that it had been improperly performed. A third opinion, obtained, as in the case of Dr. Wespic, at plaintiff’s counsel’s request, was provided by Dr. Light, who wrote that, “The myelogram shows some minor abnormalities which were interpreted as normal by the radiologist and abnormal by Dr. Stein ... I personally do not believe that this myelogram is normal.” Dr. Light thought the findings inconclusive
Judgment affirmed.