Blake v. Avedikian

• Decision Date: 16 April 1992
• Citation: 412 Mass. 481,590 N.E.2d 183
• Parties: Kathleen BLAKE, v. Suzanne AVEDIKIAN et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 183

590 N.E.2d 183

412 Mass. 481

Kathleen BLAKE, v. Suzanne AVEDIKIAN et al. ¹

Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 6, 1992.

Decided April 16, 1992.

Evan T. Lawson, Boston, for plaintiff.

Terrance J. Hamilton, Boston, for defendants.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

LYNCH, Justice.

On the plaintiff's complaint, alleging dental malpractice, a malpractice tribunal (G.L. c. 231, § 60B [1990 ed.] ) determined that there was not sufficient evidence to raise a legitimate question of liability appropriate for judicial inquiry. The plaintiff's motion for reconsideration and motion to strike the decision of the tribunal were denied. The Superior Court dismissed her complaint after she failed to post the required bond, and the plaintiff appealed. The Appeals Court affirmed the dismissal in an unpublished memorandum and order pursuant to Appeals Court Rule 1:28. 31 Mass.App.Ct. 1103, 575 N.E.2d 783 (1991). We granted the plaintiff's application for further appellate review, and now reverse the judgment with respect to Dr. Avedikian, but affirm the judgment with respect to Dr. Killilea.

The defendants argue that the tribunal's determination was correct because the plaintiff's offer of proof was insufficient. "A plaintiff's offer of proof as to negligence will prevail before a malpractice tribunal ... (1) if a doctor-patient relationship is shown, (2) if there is evidence that the doctor's performance did not conform to good medical practice, and (3) if damage resulted therefrom." Kapp v. Ballantine, 380 Mass. 186, 193, 402 N.E.2d 463 (1980). The defendants argue that: the plaintiff failed to establish the qualifications of her proffered expert; the expert's opinion letter failed to identify any standards of dental practice to which the defendants' performance did not conform; and that the plaintiff failed to establish a doctor-patient relationship with Dr. Killilea.

1. Qualification of expert. The standard for admission of expert testimony before a medical malpractice tribunal is "extremely lenient," Halley v. Birbiglia, 390 Mass. 540, 543 n. 4, 458 N.E.2d 710 (1983).

"In our view, the tribunal should give consideration to the proffered opinion of an expert if the offer of proof is sufficient to show that a trial judge in his discretion might properly rule that the qualifications of the witness are sufficient [emphasis in original]. Thus, the opinions of an expert are to be received even if the tribunal (or its presiding judge) might decide that if the exercise of discretion were in its province, it would not accept the expert as qualified" (emphasis added). Kapp v. Ballantine, 380 Mass. 186, 192, 402 N.E.2d 463 (1980). Furthermore, we note that any challenge to the credentials of an expert should not be made for the first time on appeal. Halley v. Birbiglia, supra. ²

The defendants argue that the plaintiff failed to establish her proffered expert as qualified to give an opinion because no information was supplied as to the expert's education, training, knowledge, or professional experience. We have stated that the "extent of [an expert's] training and experience would bear only on the weight that should be given to his testimony," Commonwealth v. Schulze, 389 Mass. 735, 740, 452 N.E.2d 216 (1983), and not its admissibility. See Letch v. Daniels, 401 Mass. 65, 69, 514 N.E.2d 675 (1987). Appraisal of the weight and credibility of the evidence by the tribunal is impermissible. Kapp v. Ballantine, supra 380 Mass. at 191, 402 N.E.2d 463. A judge may disqualify the expert at trial, but a tribunal may not, if minimal evidence exists as to the expert's qualifications. Id. at 192, 402 N.E.2d 463.

The opinion letter supplied by the plaintiff's expert, Dr. Stephen P. Straus, was typed on the letterhead of a professional dental association and the expert's name, followed by the abbreviation, "D.M.D.," was imprinted on the letterhead. The letter was signed by Dr. Straus with the same abbreviation after his signature and in the signature block. Although it would have been preferable for the plaintiff to have submitted an affidavit with supporting documentation as to the expert's credentials, we conclude that the letter, as submitted, satisfied the plaintiff's burden of showing that Dr. Straus was a practicing dentist and, therefore, met the "extremely lenient" standard of establishing an expert's qualifications before a medical malpractice tribunal.

2. Conformance to good medical practice. The defendants argue that the plaintiff's offer of proof was insufficient to show that the defendants failed to conform to good medical practice. In a proceeding before a medical malpractice tribunal the evidence presented by the offer of proof is viewed by a standard comparable to a motion for a directed verdict, that is, in a light most favorable to the plaintiff. Kopycinski v. Aserkoff, 410 Mass. 410, 415, 417-418, 573 N.E.2d 961 (1991).

The plaintiff's offer of proof included a letter from her expert and pre- and postoperative photographs. The defendants argue that the letter sets forth merely conclusory opinions. The plaintiff argues that the letter identifies a dental standard: that care must be taken to bend back and preserve the gum which is attached to the tooth to be extracted, and that the standard...