Gugino v. Harvard Community Health Plan

• Decision Date: 23 April 1980
• Citation: 380 Mass. 464,403 N.E.2d 1166
• Parties: Jeanne E. GUGINO v. HARVARD COMMUNITY HEALTH PLAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1166

403 N.E.2d 1166

380 Mass. 464

Jeanne E. GUGINO v. HARVARD COMMUNITY HEALTH PLAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1980.

Decided April 23, 1980.

Alanna G. Cline, Brighton, for plaintiff.

Marcia Sneden, Boston, for defendants.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

BRAUCHER, Justice.

The plaintiff seeks to recover damages for personal injuries as a result of the alleged malpractice of the defendants with respect to an intrauterine contraceptive device, the Dalkon Shield. A medical malpractice tribunal convened pursuant to G.L. c. 231, § 60B, found that the plaintiff's offer of proof "is not sufficient to raise a legitimate question of liability appropriate for judicial inquiry." On the plaintiff's motion, the judge who sat with the panel reduced the bond to be filed by the plaintiff to the sum of $1,500 as to each defendant. A single justice of the Appeals Court gave the plaintiff leave to file an interlocutory appeal, and we transferred the case to this court on our own motion. We hold that the decision of the tribunal was erroneous, and order the entry of a decision that the plaintiff's offer of proof was sufficient. We also indicate that the requirement that bonds in the amount of $4,500 be filed by an indigent plaintiff constituted an abuse of discretion.

The plaintiff's complaint, filed June 27, 1977, as later amended, made claims against the Harvard Community Health Plan (Plan) and two of its employees, Dr. Thomas Mahoney and Susan Daggett, R.N., a nurse practitioner. Additional claims against the doctor who inserted the device were voluntarily dismissed without prejudice, and claims against the manufacturer of the device were not submitted to the tribunal. The tribunal was convened in May, 1978, consisting of the judge, a lawyer and a gynecologist, and it filed its findings in June, 1978.

1. The offer of proof. We summarize the plaintiff's offer of proof, consisting of her affidavit and the affidavit of an expert witness, copies of medical records, and articles from newspapers and medical periodicals, together with oral representations of counsel. The device was implanted in 1972. In June, 1974, the plaintiff was a member of the Plan, assigned to the defendant doctor. She read an article in the New York Times concerning the Dalkon Shield, and on June 27, 1974, she consulted the doctor as to the risks of pregnancy and infection, telling him that she was experiencing dysfunctional bleeding. The doctor advised her that he knew of no pregnancy or infection problems associated with the device, and reassured her as to its use.

In mid-April, 1975, the plaintiff began to experience a foul vaginal odor like that of dead fish. She called the Plan for an appointment and was told by the defendant nurse to douche with yogurt. A little over a week later she developed intense pain and again called the Plan. She said, "I'm having a baby, only I am not pregnant. Do you know what I mean." The defendant nurse said she probably had a lower G.I. flu and should call back if she developed a fever. On April 30, 1975, when she kept a scheduled appointment at the Plan, the plaintiff could hardly walk; the device was removed and she was given an antibiotic and a painkiller and told to return May 2. She did so, multiple abscesses were diagnosed, and on May 5 she underwent a total hysterectomy.

The plaintiff's expert is a licensed physician and a primary care internist with considerable experience in working with and supervising nurse practitioners. After reviewing the available medical records and the plaintiff's statements, he expressed the following opinions, among others. The defendant doctor and defendant nurse were under a continuing obligation to inform the plaintiff of the risks known to be associated with the Dalkon Shield. Failure so to inform the patient was negligence, and omission of such disclosure in June, 1974, probably determined the plaintiff's retention of the device and contributed to the infection. The management of the plaintiff's case by the defendant nurse, months later, was clearly in error; a yogurt douche is a substandard lay remedy, inappropriate for an odor of dead fish. Delay of more than forty-eight hours in scheduling diagnosis and treatment was substandard care. The time factor was critical, and each day of delay increased the likelihood of surgery; this critical delay was the factor which caused the need for a total hysterectomy.

An article published in 1973 reported that "an increasing number of IUD users were complaining of a persistent vaginal odor like that of rotting fish, which was resistant to all forms of local therapy," and concluded that patients should be advised of "the potential serious hazards of the IUD" and "instructed to notify their physician immediately upon the appearance of abnormal bleeding, foul-smelling leukorrhea, or persistent pelvic pain." Golditch & Huston, Serious Pelvic Infections Associated with Intrauterine Contraceptive Device, 18 Int. J. of Fertility 156-160 (1973). An article in the New York Times in June, 1973, mentioned "serious complications," including infection and heavy bleeding, encountered with IUDs, but concentrated more on pregnancy risks. New York Times articles in May, 1974, warned of risks of infection in cases of women who became pregnant while wearing a Dalkon Shield, and a later article reported that the device was withdrawn from the market in 1974. Subsequent articles in medical journals analyzed both pregnancy and infection problems, and tended to confirm the opinion of the plaintiff's expert as to causation.

The plaintiff's expert complained that his evaluation of the case was frustrated by the "very sketchy nature" of the Plan's records. We have examined those records, and find it impossible to tell how "sketchy" they are, since many of them are almost totally illegible. No records of telephone calls were submitted by the defendants, and counsel for the defendants doubted that any record of such calls was made. The defendants admitted that the defendant doctor and the defendant nurse were employees of the Plan, and that they rendered medical care to the plaintiff.

2. Sufficiency of the offer. We recently discussed the standard of review applicable to the finding of a medical malpractice tribunal. Kapp v. Ballantine, --- Mass. ---, --- - --- ^a, 402 N.E.2d 463 (1980). Much of that discussion is applicable to the present case, but it need not be repeated here. The plaintiff complied with G.L. c. 231, § 60B, which contemplates that the plaintiff present, not mere allegations or an oral offer of proof by counsel, but "evidence" to be "properly substantiated" at trial. See ID. AT --- N. 4 , 402 N.E.2D 463.^B The witnesses need not testify in person, and allowance should be made for the fact that the hearing before the tribunal ordinarily precedes...