Johnston v. Stein

• Decision Date: 28 November 1990
• Docket Number: No. 89-P-833,89-P-833
• Citation: 29 Mass.App.Ct. 996,562 N.E.2d 1365
• Parties: Betty JOHNSTON v. Sherman D. STEIN.
• Court: Appeals Court of Massachusetts

Page 1365

562 N.E.2d 1365

29 Mass.App.Ct. 996

Betty JOHNSTON v. Sherman D. STEIN.

No. 89-P-833.

Appeals Court of Massachusetts,

Hampden.

Argued Oct. 9, 1990.

Decided Nov. 28, 1990.

Phyllis P. Ryan, Springfield, for plaintiff.

Deborah A. Bloom, Springfield, for defendant.

Before WARNER, C.J., and KASS and IRELAND, JJ.

RESCRIPT.

On appeal, the plaintiff Johnston does not assert, as part of her medical malpractice claim, that the surgical procedure which Dr. Stein, the defendant, performed on her back was negligently executed. Rather, she ascribes negligence to the decision to do the operation and casts her claim in terms of Dr. Stein having "misrepresented" her condition. Thus misled, Johnston complains that she was not capable of having given informed consent to the surgery. Johnston's claim was placed before a medical malpractice tribunal (see G.L. c. 231, § 60B) which, upon examination of the offer of proof, determined that she had not raised a legitimate question of liability warranting judicial inquiry. Johnston did not file a bond and, upon the expiration of more than thirty days after entry of the tribunal's finding, the complaint was dismissed. G.L. c. 231, § 60B.

1. Jurisdiction of the medical malpractice tribunal. By formulating her grievance against Dr. Stein as a wilful misrepresentation that her preoperative diagnostic tests read positive for disc herniation, Johnston provokes a threshold question whether the tort of intentional misrepresentation is a proper subject for a medical malpractice tribunal. We think that it is. Performing surgery without the plaintiff's informed consent is professional misconduct, and complaints alleging it are subject to the screening mechanism of a medical malpractice tribunal. Lubanes v. George, 386 Mass. 320, 324-325, 435 N.E.2d 1031 (1982). The legislative design of G.L. c. 231, § 60B, for medical malpractice tribunals contemplates that all treatment-related claims be referred in the first instance to a tribunal. Little v. Rosenthal, 376 Mass. 573, 576, 382 N.E.2d 1037 (1978). Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 519, 386 N.E.2d 1268 (1979). Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 154-155, 439 N.E.2d 240 (1982). Whether expressed as a misreading (which would connote negligence) of the patient's X-rays and CAT scans or a misrepresentation, the core of Johnston's complaint is that surgery proceeded on assumptions falsely communicated to her. That is a complaint related to treatment. What is at stake is a malpractice claim and we look to that substance, not the legal theory adopted. See Schenker v. Binns, 18 Mass.App.Ct. 404, 406-407, 466 N.E.2d 131 (1984).

2. Adequacy of offer of proof to the tribunal. The applicable standard is familiar. Would the materials (expert opinions, depositions, hospital records, affidavits, etc.) submitted in an offer of proof to the medical malpractice tribunal, if substantiated at trial, be sufficient to withstand a motion for a directed verdict? Little v. Rosenthal, 376 Mass. at 578, 382 N.E.2d 1037. Kapp v. Ballantine, 380 Mass. 186, 191-192, 402 N.E.2d 463 (1980). Flagg v. Scott, 9 Mass.App.Ct. 811, 397 N.E.2d 1300 (1980). DiNozzi v. Lovejoy, 20 Mass.App.Ct. 973, 482 N.E.2d 338 (1985). Apart from Dr. Stein's impression of disc herniation, there were three medical opinions offered to the tribunal. Dr. Brendler had examined the patient for the workers' compensation insurer. He wrote that both the preoperative...