Feliciano v. Attanucci

• Decision Date: 11 March 2019
• Docket Number: No. 17-P-1568,17-P-1568
• Citation: 119 N.E.3d 1209,95 Mass.App.Ct. 34
• Parties: Jesus FELICIANO, Personal Representative, v. Cara ATTANUCCI & Another.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 34

119 N.E.3d 1209

Jesus FELICIANO, Personal Representative,¹

v.Cara ATTANUCCI & Another.²

No. 17-P-1568

Appeals Court of Massachusetts, Suffolk.

Argued September 10, 2018

Decided March 11, 2019

Barrie E. Duchesneau, Boston, for the plaintiff.

John D. Cassidy, Boston, for the defendants.

Lisa Wichter, Boston, for Licia Raymond & others, was present but did not argue.

Noah A. Rabin, for Lisa Dunn-Albanese & others, was present but did not argue.

Present: Wolohojian, Lemire, & Englander, JJ.

WOLOHOJIAN, J.

At issue in this appeal is a medical malpractice tribunal's conclusion that the plaintiff failed to raise a legitimate question of liability with respect to Dr. Cara Attanucci and Dr. Henry Lerner, both of whom were involved in the care of the plaintiff's decedent, Natasha Feliciano (Feliciano)³ at Newton-Wellesley Hospital, where Feliciano died after protracted, and then arrested, labor, an emergency bedside cesarean section

, and a subsequent emergency bedside hysterectomy. We vacate the judgment of dismissal.

We summarize the evidence in the plaintiff's offer of proof in the light most favorable to the plaintiff. Blake v. Avedikian, 412 Mass. 481, 484, 590 N.E.2d 183 (1992), citing Kopycinski v. Aserkoff, 410 Mass. 410, 415, 417-418 (1991). Feliciano, a healthy twenty-nine year old mother of two children, was thirty-eight and one-half weeks pregnant with her third child when she presented herself at Newton-Wellesley Hospital at 11:28 P.M. on August 10, 2014, complaining of labor. She died at the hospital twenty-five hours later from hemorrhagic shock

, disseminated intravascular coagulation,⁴ and amniotic fluid embolism.⁵

Summarized in general layman's terms, Feliciano died because (a) the defendants failed to timely recognize that her condition required a cesarean section

, and Feliciano "coded," (b) the defendants failed to ensure, after performing an emergency bedside perimortem cesarean section

, that Feliciano's abdomen be left open to monitor for uterine bleeding and failed to place her in or near an operating room in case an emergency hysterectomy was also required,⁶ (c) the defendants failed thereafter to sufficiently monitor her and failed to recognize that her condition necessitated a hysterectomy until after she again "coded," (d) the defendants waited too long to perform the emergency hysterectomy, and (e) the defendants performed the emergency hysterectomy in Feliciano's bed and without proper medical tools (such as a scalpel) because of the delay in performing the procedure and because of the earlier failure to place her in or near an operating room.⁷ The plaintiff's expert's opinion is that the defendants' medical treatment fell below the accepted standard of care and resulted in Feliciano's injury, suffering, and premature and preventable death. We set out additional facts below as they relate to the specific arguments raised on appeal.

The plaintiff filed this medical malpractice and wrongful death action against (among others) a number of doctors and nurses who were involved in Feliciano's treatment at Newton-Wellesley Hospital. The plaintiff's offer of proof included the detailed expert opinion of Dr. S. Jason Kapnick, a licensed physician board certified in obstetrics and gynecology and gynecological oncology, together with his curriculum vitae. It also included medical records from Newton-Wellesley Hospital, fetal monitoring

strips, an autopsy report from Massachusetts General Hospital, and Feliciano's death certificate. After a hearing, a medical malpractice tribunal found that the evidence did not raise a legitimate question of liability with respect to Newton-Wellesley Obstetrics and Gynecology, P.C., and with respect to two of the individual physicians, Dr. Cara Attanucci and Dr. Henry Lerner. After the plaintiff failed to post a bond with the Superior Court, see G. L. c. 231, § 60B, the claims against Drs. Attanucci and Lerner, as well as those against Newton-Wellesley Obstetrics and Gynecology, P.C., were dismissed, and a separate and final judgment entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). At issue before us are only the claims against Drs. Attanucci and Lerner.⁸

A plaintiff's offer of proof shall prevail before a medical malpractice tribunal (1) if the defendant is a health care provider as defined in G. L. c. 231, § 60B,⁹ see Santos v. Kim, 429 Mass. 130, 133-134, 706 N.E.2d 658 (1999),¹⁰ "(2) if there is evidence that the [health care provider'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 tribunal is not to engage in weighing the evidence or determining credibility, Keppler v. Tufts, 38 Mass. App. Ct. 587, 589, 649 N.E.2d 1139 (1995), and "[a]ny factual dispute as to the meaning of the record is for the jury." Rahilly v. North Adams Regional Hosp., 36 Mass. App. Ct. 714, 723, 636 N.E.2d 280 (1994), quoting Kopycinski, 410 Mass. at 418, 573 N.E.2d 961.

The task of the medical malpractice tribunal is a "narrow" one, in which "the tribunal should simply examine the evidence proposed to be offered on behalf of the patient to determine whether that evidence, ‘if properly substantiated,’ " (citation omitted), McMahon v. Glixman, 379 Mass. 60, 69, 393 N.E.2d 875 (1979), "is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff's case is merely an unfortunate medical result." G. L. c. 231, § 60B. "[T]he 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." Blake, 412 Mass. at 484, 590 N.E.2d 183, citing Kopycinski, 410 Mass. at 415, 417-418, 573 N.E.2d 961. "That standard is whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ " Dobos v. Driscoll, 404 Mass. 634, 656, 537 N.E.2d 558, cert. denied, 493 U.S. 850, 110 S.Ct. 149, 107 L.Ed.2d 107 (1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978).

Although the tribunal's role vis-à-vis the plaintiff's evidence is comparable to the directed verdict standard in the sense that the plaintiff's offer of proof is to be viewed in the light most favorable to the plaintiff, the standards are not "one and the same." Kopycinski, 410 Mass. at 415, 573 N.E.2d 961. It is important to remember that the tribunal's evaluation of the plaintiff's offer of proof occurs at a very different stage of the litigation than does a judge's evaluation of the evidence on a motion for directed verdict. Whereas a motion for directed verdict comes after discovery has been completed, the plaintiff's legal claims and theories have been tested through pretrial dispositive motions, expert opinions have been tested and vetted through Lanigan motions, see Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994), and the plaintiff's witnesses and documentary evidence have been admitted and cross-examined at trial, the offer of proof before the tribunal is made without the benefit of discovery and at the earliest stage in the life of the litigation -- even before motions to dismiss. For this reason, the statute explicitly contemplates that a plaintiff's offer of proof to the tribunal need not meet the full evidentiary burden of proof at trial; instead, the offer of proof, taken in the light most favorable to the plaintiff, need only be sufficient to raise a legitimate question of liability, with proper evidentiary substantiation to follow. See, e.g., McMahon, 379 Mass. at 69, 393 N.E.2d 875. This principle is directly reflected in the language of the statute, which highlights that the evidence in the offer of proof will be the subject of future substantiation in the course of litigation. See G. L. c. 231, § 60B ("said tribunal shall determine if the evidence presented if properly substantiated is sufficient to raise a legitimate question of liability" [emphasis added] ). Thus, at this stage, we do not require that the plaintiff's proof be complete, merely that it be enough to "raise a legitimate question of liability appropriate for judicial inquiry." Id. In short, not all factual questions need be answered or resolved at this stage.

Consistent with this, the admission of expert opinion before the tribunal is not subject to the same strictures as are required for admission at trial. Indeed, "[t]he standard for admission of expert testimony before a medical malpractice tribunal is an extremely lenient one." Halley v. Birbiglia, 390 Mass. 540, 543 n. 4, 458 N.E.2d 710 (1983). Heyman v. Knirk, 35 Mass. App. Ct. 946, 947-948, 626 N.E.2d 5 (1993). "[T]he tribunal may not refuse to accept an expert's opinion unless the plaintiff's offer of proof is so deficient that as a matter of law it would be improper for any judge to admit it." Nickerson v. Lee, 42 Mass. App. Ct. 106, 111, 674 N.E.2d 1111 (1997). Extrinsic evidence is not required to substantiate the factual statements in an expert's opinion, and "a factually based statement by a qualified expert, without more, is sufficient to meet the tribunal standard" (emphasis added). Booth v. Silva, 36 Mass. App. Ct. 16, 21, 626 N.E.2d 903 (1994).

With these legal principles in mind, we turn to examining the specifics of the offer of proof with respect to Drs. Attanucci and Lerner. As to Dr. Attanucci, the offer of proof sufficiently established that she was a health care provider to Feliciano: Dr. Attanucci assisted in the emergency perimortem bedside cesarean section

.¹¹ See Lambley v. Kameny, 43 Mass. App. Ct. 277, 283, 682 N.E.2d 907 (1997) ("The essence of the doctor-patient relationship is the undertaking by a physician to diagnose and/or treat the person being diagnosed or treated with reasonable professional skill"). A legitimate question of Dr....