Goudreault v. Nine

• Decision Date: 30 April 2015
• Docket Number: No. 14–P–359.,14–P–359.
• Citation: 29 N.E.3d 203,87 Mass.App.Ct. 304
• Parties: Barbara GOUDREAULT v. Erik NINE.
• Court: Appeals Court of Massachusetts

87 Mass.App.Ct. 304

29 N.E.3d 203

Barbara GOUDREAULT

v.Erik NINE.

No. 14–P–359.

Appeals Court of Massachusetts, Essex.

Argued Dec. 8, 2014.

Decided April 30, 2015.

Barrie E. Duchesneau, Boston, for the plaintiff.

Allyson N. Hammerstedt, Cambridge, for the defendant.

Present: GRAINGER, AGNES, & SULLIVAN, JJ.

Opinion

AGNES

, J.

The plaintiff, Barbara Goudreault, filed a medical malpractice suit alleging that on February 7, 2011, the defendant radiologist Erik Nine, M.D., failed to properly interpret her mammogram

results and recommend necessary follow-up tests, delaying her breast cancer diagnosis and worsening her prognosis. In accordance with G.L. c. 231, § 60B, the matter was referred to a medical malpractice tribunal, with the only issue being that of causation. After a hearing, the tribunal concluded that there was insufficient evidence “to raise a legitimate question of liability appropriate for judicial inquiry.” G.L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5.¹ For the reasons that follow, we reverse.

Background. We first set out the evidence before the tribunal, in the light most favorable to Goudreault. See Cooper v. Cooper–Ciccarelli, 77 Mass.App.Ct. 86, 91, 928 N.E.2d 672 (2010)

.

a. Course of diagnosis and treatment. On July 26, 2010, Goudreault went to Anna Jaques Hospital for a routine bilateral screening mammogram

, which was found to be abnormal. The reporting doctor (not the defendant) concluded, relevantly here, that “[i]n the left lower outer breast there [was] a [one-centimeter] ovoid well-defined nodule which [was] new compared to the prior studies,” adjacent to which was, in the left upper outer breast, a “small cluster [of] microcalcifications ... associated with a small well defined density.” The doctor recommended a bilateral breast ultrasound, spot compression mammograms and true lateral mammograms of both breasts, and magnification mammograms of the left upper outer breast. The doctor's report assessed Goudreault in “category 0”—“need[s] additional imaging evaluation.”

Complying with the recommendation, four days later, on July 30, 2010, Goudreault returned for the diagnostic mammograms

and ultrasound. The same doctor (again, not the defendant) reported the findings, which included that “[t]he microcalcifications in the left upper outer breast are two in number and are both rounded. This is not worrisome appearance but they are new since the prior mammogram

, and 6–month follow-up is recommended. The small nodular density that they appear to be associated with corresponds to a [normal appearing] lymph node on targeted ultrasound.” No further work-up was recommended for the lymph node, and while the doctor concluded that the “[n]ew microcalcifications in the left upper outer breast do not appear suspicious, ... surveillance would be prudent and [a] 6–month follow-up magnification mammogram of the left upper outer breast is recommended.” Goudreault was assessed as within “category 3,” indicating “[p]robably benign finding: [s]hort interval follow-up suggested.”

On February 7, 2011, Goudreault returned to Anna Jaques Hospital for her six-month follow-up left breast mammogram

. The defendant interpreted and reported the results of her mammogram films.² Dr. Nine reported that there was “no evidence of a new dominant mass.” He made note of the calcifications within

the left upper outer quadrant, stating that they had not significantly changed in size, number, or appearance from the prior exam and were “likely benign.” Dr. Nine reported there were “no new suspicious clustered microcalcifications[,] architectural distortions[,] or skin abnormalities.” He did not recommend any immediate further tests, such as a biopsy or a magnetic resonance imaging

(MRI) study. He instead recommended continued surveillance with another six-month follow-up evaluation “to assure interval stability.” He assessed Goudreault as remaining in category 3. Goudreault did not attend her six-month follow-up, despite efforts by the hospital to reach out to her and remind her of the appointments.³

On February 13, 2012, approximately one year after Dr. Nine read her mammogram

, Goudreault returned to Anna Jaques Hospital for follow-up diagnostic mammography. The radiologist (who was not Dr. Nine) noted that the findings of the left breast mammogram were “highly suspicious for malignancy.” The report indicated that there was “a lobular mass ... with architectural distortion measuring approximately [two centimeters]” in the upper outer quadrant posteriorly, with “new clustered pleomorphic microcalcifications” to the anterior.⁴ Goudreault was now assessed in “category 5”: “Highly suspicious for malignancy and appropriate action should be taken.”

Based on the February 13, 2012, findings, the doctor recommended further tests. Goudreault underwent a left breast biopsy on March 15, 2012, which revealed the presence of invasive ductal carcinoma

. Goudreault returned on April 6, 2012, for a diagnostic breast MRI. That MRI documented “a 2.8 x 1.2 x 1.0 cm in diameter enhancing mass in the upper outer left breast” with some anterior extension. The entire area measured approximately 6.5 centimeters, and the known malignancy had “tendrils of enhancement extending anteriorly from it which [were] worrisome for regional spread of [the] disease.” On May 17, 2012, Goudreault underwent a recommended left breast modified radical

mastectomy

, followed by postoperative chemotherapy.

b. Expert opinion evidence. On November 1, 2013, Goudreault presented an offer of proof to the tribunal that included two letters from medical experts Kishan Yalavarthi, M.D.,⁵ and Andrew Schneider, M.D.⁶

In his letter Dr. Yalavarthi, a radiologist, asserted that, in his professional opinion, and to a reasonable degree of medical certainty, Goudreault suffered a significant delay in the diagnosis and treatment of her breast cancer

as the direct result of the substandard care rendered to her by Dr. Nine. Specifically, after Dr. Yalavarthi reviewed the mammogram films dated February 7, 2011, he identified two problems with the care rendered by Dr. Nine on that day. First, Dr. Nine “failed to identify and report a concerning area of a larger, more solid, asymmetric and spiculated density with architectural distortion in the upper outer region of the left breast at the 1–2 o'clock position.” This area had “clearly increased in size” since the mammogram and ultrasound in July of 2010, in Dr. Yalavarthi's opinion.⁷ Secondly, Dr. Nine “failed to offer, order, and/or perform further diagnostic/imaging studies to rule out cancer, such as ultrasound, MRI, and biopsy.” Dr. Yalavarthi's letter concluded that, “[a]s a direct result of the substandard care rendered by Dr. Nine, Ms. Goudreault's left breast cancer was not diagnosed until March 2012. Had Dr. Nine rendered care in accordance with the accepted standard of care as outlined above,^[

⁸

] Ms. Goudreault would have undergone additional left breast imaging such as an ultrasound, MRI and/or

biopsy and, more likely than not, her cancer

would have been diagnosed as early as February 2011.”

In a second expert opinion letter, Dr. Schneider, an oncologist, asserted that, in his professional opinion and to a reasonable degree of medical certainty, as a direct result of the deviations from the accepted standard of care by Dr. Nine as set forth in Dr. Yalavarthi's expert opinion letter, Goudreault's left breast cancer

“went undiagnosed and untreated for over [thirteen] months, resulting in a significant increase in size of the tumor and spread beyond her left breast to her lymph nodes, and a worsened prognosis and loss of chance for cure.” Dr. Schneider also opined, “Had Dr. Nine rendered care in accordance with the accepted standard of care as outlined above, Ms. Goudreault would have undergone further diagnostic/imaging studies such as ultrasound, MRI, and/or biopsy and, more likely than not, her cancer would have been diagnosed as early as February 2011, when it was at an earlier stage and amenable to cure.”

Discussion. a. Standard of review. A plaintiff's offer of proof before a medical malpractice tribunal must “(1) show that the defendant is a provider of health care as defined in G.L. c. 231, § 60B

; (2) demonstrate that the health care provider did not conform to good medical practice; and (3) establish resulting damage.” Saunders v. Ready, 68 Mass.App.Ct. 403, 403–404, 862 N.E.2d 422 (2007). See Santos v. Kim, 429 Mass. 130, 132–134, 706 N.E.2d 658 (1999) ; Washington v. Cranmer, 86 Mass.App.Ct. 674, 675, 20 N.E.3d 613 (2014).⁹ Because the determination of sufficiency before a tribunal is a factual one, Kopycinski v. Aserkoff, 410 Mass. 410, 413, 573 N.E.2d 961 (1991), the tribunal's task is “akin to a trial judge's evaluation of a motion for a directed verdict.” Cooper v. Cooper–Ciccarelli, 77 Mass.App.Ct. at 91, 928 N.E.2d 672, citing Little v. Rosenthal, 376 Mass. 573, 578, 382 N.E.2d 1037 (1978). The tribunal may not examine the weight or credibility of the evidence. Cooper v. Cooper–Ciccarelli, supra. Instead, it must view the

evidence contained in the offer of proof in the light most favorable to the plaintiff. Ibid., citing Blake v. Avedikian, 412 Mass. 481, 484, 590 N.E.2d 183 (1992)

. Under this standard, the tribunal must find the plaintiff's offer of proof sufficient “if 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. If any such combination of circumstances could be found it is, for present purposes, immaterial how many other combinations could have been found which would have led to conclusions adverse to the plaintiff.” Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302, 52 N.E.2d 411 (1943). See Thou v. Russo, 86 Mass.App.Ct. 514, 516, 17 N.E.3d 1113 (2014). In particular, this standard requires the tribunal to draw all reasonable inferences favorable to the plaintiff and prohibits...