Earley v. Slavin
| Citation | 101 Mass.App.Ct. 198,190 N.E.3d 538 |
| Decision Date | 10 June 2022 |
| Docket Number | 21-P-600 |
| Parties | Seth EARLEY v. Sumner A. SLAVIN. |
| Court | Appeals Court of Massachusetts |
Evans Huber, for the plaintiff.
John P. Puleo, Boston, for the defendant.
Present: Vuono, Shin, & Singh, JJ.
The principal issue in this appeal is whether expert testimony is required to prove a claim that the defendant, a plastic surgeon, committed a breach of a promise to excise excess skin from the plaintiff's chest as part of an elective cosmetic procedure involving the use of liposuction. Determining that the claim, although labeled as breach of contract, was in substance one for malpractice, a Superior Court judge granted summary judgment for the defendant based on the plaintiff's failure to put forward an expert. We conclude to the contrary that the claim is founded in contract and that the plaintiff need not present an expert to meet his burden of proof at trial. Accordingly, we vacate that portion of the judgment dismissing the breach of contract claim and remand the case for further proceedings. We affirm the remainder of the judgment.
Background. We recite the facts in the light most favorable to the plaintiff, the party opposing summary judgment. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680, 46 N.E.3d 24 (2016).
In October 2014 the plaintiff had an initial consultation with the defendant about options for correcting his gynecomastia, a condition that causes excess breast tissue. The defendant recommended a surgery that would involve excising the tissue and using liposuction to remove excess fat. From a previous experience, the plaintiff knew that liposuction can result in sagging skin, and so he made clear to the defendant that he did not want to proceed with the surgery unless it included "a skin excision component." The defendant promised in return that he would remove the excess skin as part of the surgery. The defendant discussed the skin excision procedure with the plaintiff "in some detail," explaining that it would result in "no obvious scar, as the suture would be on a naturally-occurring edge" of the areolas.
Satisfied with the defendant's plan, the plaintiff agreed to undergo the surgery. Also, at the defendant's urging, the plaintiff agreed to undergo another surgery on his flanks, which, like the gynecomastia correction, was to involve tissue excision and liposuction, followed by the removal of excess skin. The plaintiff proceeded to sign two consent forms. The first authorized the defendant "to perform upon [the plaintiff] ... the operation known as gynecomastia correction." The second, titled "Medical/Surgical Treatment Consent," described the procedures to be performed as "bilateral excision gynecomastia," "excision of bilateral flank excess tissue," and "liposuction chest [and] bilateral flanks."
On the day of the surgery, the plaintiff was in the holding area and about to receive anesthesia when the defendant approached him. For the first time, the defendant suggested that he might not have to remove the excess skin from the plaintiff's flanks because the skin could " ‘settle down’ on its own." The defendant asked that he be allowed to "use his judgment" as to whether skin excision would be necessary on the plaintiff's flanks, and the plaintiff agreed. The defendant then handwrote the word "possible" before "excision of bilateral flank excess tissue" on the Medical/Surgical Treatment Consent form. At no point did the defendant suggest that skin excision would not be included as part of the gynecomastia correction, nor did he seek permission to use his judgment in that respect.
Upon awaking from anesthesia, the plaintiff discovered that the defendant had not removed the excess skin from either the plaintiff's chest or flanks because the defendant had determined that the skin would retract and flatten on its own. Months later, however, the skin still had not tightened, and it became clear that the condition was not temporary. When the plaintiff expressed unhappiness with the outcome, the defendant offered to perform the skin excision as a "touch up" and to waive his surgical fee "as a gesture of goodwill." The plaintiff declined for several reasons, including that he would be responsible for the additional hospital fees.
The plaintiff filed this action in December 2017 and, with leave of court, filed an amended complaint in October 2019. The amended complaint raised four claims: breach of contract for failure to achieve a promised result (count I); unjust enrichment (count II); breach of contract for failure to perform skin excision as part of the gynecomastia correction (count III); and battery (count IV).1 The defendant filed a motion for summary judgment on all the claims, which the judge initially denied. The defendant moved for reconsideration, and, while that motion was pending, we issued our decision in Vacca v. Brigham & Women's Hosp., Inc., 98 Mass. App. Ct. 463, 471, 156 N.E.3d 800 (2020), in which we explained that "a judge faced with a claim against a health care provider must look at the substance of the plaintiff's allegations, rather than the label on the cause of action, to determine if the claim is a malpractice claim." Reconsidering her earlier ruling in light of Vacca, the judge determined that the plaintiff's claims were essentially malpractice claims and could not survive summary judgment without expert evidence. Because the plaintiff "readily admit[ted]" that he did not intend to retain an expert, the judge then concluded that there was no genuine issue for trial. The plaintiff's appeal from the dismissal of counts III and IV is now before us.2
Discussion. We review the judge's decision de novo. See Bulwer, 473 Mass. at 680, 46 N.E.3d 24. Our task is to determine whether, viewing the facts in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. See id. Where, as here, the moving party will not have the burden of proof at trial, he can prevail on summary judgment by demonstrating that the nonmoving party "has no reasonable expectation of proving an essential element" of his claim. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).
1. Breach of contract. The plaintiff argues, and the defendant does not contest, that count III sets out all the essential elements of a breach of contract claim. In particular, it alleges that the parties "entered into a contractual agreement pursuant to which [the defendant] agreed to perform a chest skin excision as part of [the plaintiff's] gynecomastia procedure, and [the plaintiff] agreed to pay for [the defendant's] services," that the plaintiff "fully performed under the contract," that the defendant "breached the contract by failing to perform the chest skin excision as part of the gynecomastia procedure," and that the plaintiff "was harmed by this breach."3
The parties’ disagreement is over the substance of the claim. The defendant contends that the claim sounds in malpractice because it arises from his "exercise of medical judgment" as to how best to perform the gynecomastia correction. If that characterization is correct, the plaintiff would be obliged to prove, among other things, that the defendant deviated from the applicable standard of care, which ordinarily would require expert testimony. See Palandjian v. Foster, 446 Mass. 100, 105-106, 842 N.E.2d 916 (2006). On the other hand, the plaintiff contends that the claim sounds in contract and that the ultimate issue for the jury -- whether the defendant promised to remove the excess skin as part of the gynecomastia correction -- is one on which expert testimony is neither necessary nor appropriate.
After carefully reviewing the substance of the plaintiff's allegations, see Vacca, 98 Mass. App. Ct. at 471, 156 N.E.3d 800, we conclude that his claim asserts breach of contract, not malpractice or negligence, and that it should not have been dismissed on summary judgment. The crux of the claim is that the defendant made a specific promise to perform the chest skin excision and did not keep that promise, causing harm to the plaintiff. No expert testimony is needed to prove these allegations, which do not depend on any finding that the defendant was negligent or deviated from a standard of care. See Rosato v. Mascardo, 82 Conn. App. 396, 411, 844 A.2d 893 (2004) (); Heffner v. Reynolds, 149 Ohio App. 3d 339, 343, 777 N.E.2d 312 (2002) ().
Citing Vacca, the defendant suggests that any claim arising out of a surgical procedure must, as a matter of law, be deemed a malpractice claim because "[i]t is the very essence of a surgeon's responsibility to utilize [his or her] best skill and judgment in the performance of surgery." But Vacca cannot be read so broadly. Vacca expands on the holdings of earlier cases that a plaintiff cannot circumvent the statutory scheme governing "action[s] for malpractice, error or mistake against a provider of health care" by taking what is in substance a malpractice claim and naming it something different. Vacca, 98 Mass. App. Ct. at 471, 156 N.E.3d 800, quoting G. L. c. 231, § 60B. Vacca does not hold that no breach of contract claim stemming from a medical procedure is viable as a matter of law. Rather, we...
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