Kapp v. Ballantine

• Decision Date: 05 December 1979
• Citation: 402 N.E.2d 463,380 Mass. 186
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: , 8 A.L.R.4th 454 Martha J. KAPP v. H. Thomas BALLANTINE et al. 1

Page 463

402 N.E.2d 463

380 Mass. 186, 8 A.L.R.4th 454

Martha J. KAPP v. H. Thomas BALLANTINE et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 5, 1979.

Decided March 20, 1980.

Joan Rachlin, Boston (Lee D. Goldstein, Boston, with her), for plaintiff.

Stephen A. Moore, Boston, for Walter Cassidy and others.

Marcia Sneden, Boston, for H. Thomas Ballantine, Jr., M.D.

Joseph J. Walsh, Boston, for Massachusetts General Hospital.

Before HENNESSEY, C. J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The plaintiff appeals from a judgment entered in the Superior Court dismissing her action for medical malpractice against a hospital and four physicians. The dismissal followed her failure to provide a bond in the amount of $2,000 as to each defendant, as ordered by a tribunal acting under G.L. c. 231, § 60B, inserted by St. 1975, c. 362, § 5. ² Some of the defendants assert that the plaintiff has no right of appeal in these circumstances, and all of the defendants argue that the tribunal was correct in its conclusions that the plaintiff must file bonds because her offer of proof before the tribunal was inadequate as to each of the defendants. We conclude that the plaintiff has a right of appeal; that there was no error in the tribunal's finding of inadequacy as to the offer of proof as to the defendant hospital and as to one of the defendant doctors (Dr. Levy); and that there was error in the tribunal's findings as to the other three physicians (Drs. Ballantine, Adams, and Cassidy), since there was a sufficient offer of proof as to them. ³

The plaintiff's allegations concern electroconvulsive (electric shock) therapy administered to her, and a brain operation performed upon her, in 1974. The operation was a stereotactic cingulotomy, commonly referred to as a type of experimental "psychosurgery." The plaintiff had suffered for at least five years prior to 1974 from severe mental depression and severe physical pain in her head, neck, and shoulders. She had a history of suicidal tendencies. She had received therapy, including various medications, from various psychiatrists and psychologists prior to 1974.

The plaintiff's complaint alleges in substance that the electric shock therapy was unnecessary, or at least excessively applied; that the surgical procedure was unjustifiable; and that she has been caused permanent physical and mental damage. She alleges several bases for recovery against the various defendants, viz.: negligence, assault and battery, invasion of privacy, intentional infliction of emotional distress, and misrepresentation.

A hearing was held before a medical malpractice tribunal which was presided over by a Superior Court judge. See G.L. c. 231, § 60B, supra note 2. The plaintiff's offer of proof consisted of statements made by herself, her mother, and some friends who knew her before and after the surgical procedure. She also presented voluminous hospital records, as well as written opinions from several physicians and a psychologist. ⁴ The tribunal found that the offer of proof and the evidence submitted, even if properly substantiated, were not sufficient to raise a legitimate question of liability appropriate for judicial inquiry. Consequently, the tribunal ordered that bonds be filed, and the action was later dismissed when the plaintiff failed to file the bonds.

1. Right of appeal. The defendants' argument that the plaintiff has no right of appeal is without merit. This court has already decided that a plaintiff has a right of appeal in these circumstances. In McMahon v. Glixman, --- Mass. ---, --- ^a, 393 N.E.2d 875, 878 (1979), we said: "If a plaintiff elects to have the alleged legal errors reviewed on appeal without first filing a bond and going to trial, knowing that he thereby runs the risk of being out of court entirely if his claim of error by the tribunal is decided adversely to him, we believe that he is entitled to . . . review. On the other hand, he may instead file his bond, go to trial, and, if he loses, have the alleged error by the tribunal reviewed along with any other alleged errors arising from the trial. It is for him to decide whether he is willing to assume the potentially fatal risks of pretrial review after failing or refusing to file a bond."

Although it is not material in this case, we add that a plaintiff would also have a right of appeal at this stage of the proceedings on the issue whether there was abuse of discretion in a failure to reduce the required bond appropriately, on proof of the plaintiff's indigency.

2. Standard of review. At the time the tribunal proceedings were held and its decision was rendered, the parties did not have the benefit of our opinion in the case of Little v. Rosenthal, --- Mass. --- ^b, 382 N.E.2d 1037 (1978). In that case we said that "the tribunal's task should be compared, not to the process of dismissal (for failure of the plaintiff to allege in the complaint grounds on which relief may be granted) but rather to the trial judge's function in ruling on a defendant's motion for directed verdict." Id. at --- ^c, 382 N.E.2d at 1041. See also McMahon v. Glixman, supra, --- Mass. at --- ^d, 393 N.E.2d 875. The plaintiff argued before the tribunal and before this court for a standard less stringent than Little dictates, asserting that it should be sufficient to eliminate the bond requirement if the offer of proof discloses a "nonfrivolous" claim. She did not define the meaning of "nonfrivolous." The tribunal, on the other hand, in the cases of Drs. Ballantine, Adams, and Cassidy, may have engaged, not in an examination of the sufficiency of the evidence as later required by Little, but rather in an impermissible appraisal of the weight and credibility of the evidence. ⁵

Although the complaint alleges several theories or bases of recovery against some of the defendants, we think the tribunal's function under § 60B is limited to the ascertainment of whether the offer of proof is sufficient as to any one of the theories. ⁶ Compare Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and Mass.R.Civ.P. 56, 365 Mass. 824 (1974), wherein the several grounds for recovery may be examined and motions to dismiss may be allowed in whole or in part for failure of sufficient allegations (rule 12(b)(6)) or insufficiency of affidavits as to proof (rule 56).

The tribunal in this case received from the plaintiff the written reports and opinions of four medical practitioners, each of whom had appended to his report details of his background, professional training, and qualifications. These summaries showed that one of the four is a neurosurgeon, two are psychiatrists, and one is a psychologist. We appreciate that the qualifications of an expert witness to testify, and consequently the admissibility of his opinions, are ordinarily within the discretion of the trial judge. In our view, the tribunal should give consideration to the proffered opinion of an expert if the offer of proof is sufficient to show that a trial judge in his discretion might properly rule that the qualifications of the witness are sufficient. Thus, the opinions of an expert are to be received even if the tribunal (or its presiding judge) might decide that if the exercise of discretion were in its province, it would not accept the expert as qualified. We need not detail the qualifications of the four practitioners here; it is sufficient to state that the professional facts summarized as to each were sufficient to require consideration of their opinions by the tribunal. ⁷ In light of the Little standard, we turn now to a consideration of the offer of proof as it related to each defendant.

3. Offer of proof as to Dr. Ballantine. A plaintiff's offer of proof as to negligence will prevail before a malpractice tribunal, under the Little directed-verdict test, (1) if a doctor-patient relationship is shown, (2) if there is evidence that the doctor's performance did not conform to good medical practice, and (3) if damage resulted therefrom. Cf. Little v. Rosenthal, supra, --- Mass. at --- - ---- ^e, 382 N.E.2d 1037. According to this standard, the offer of proof against Dr. Ballantine was sufficient; and as to him, a bond should not have been required of the plaintiff.

The plaintiff's experts stated essentially that the diagnosis was incorrect and the surgery was unwarranted. The neurosurgeon, Dr. Yale Koskoff, found "evidence of poor medical practice" by Dr. Ballantine in that, inter alia, alternative modes of therapy had not been fully explored and standard safeguards for experimental surgery were not adhered to. A psychiatrist, Dr. Robert Sovner, wrote that the diagnosis and treatment disregarded accepted medical principles for the treatment of depression and that the psychiatric treatment given to the patient amounted to "grossly improper medical care." Another psychiatrist, Dr. William Beuscher, opined that the failure to give the patient adequate trials of psychotherapy and chemotherapy before proceeding with irreversible brain surgery was "irresponsible."

As to damages, the evidence of unwarranted surgery was sufficient in itself. But there was also evidence offered from a psychologist, Dr. Wynn Schwartz, stating in substance that, if the patient's testimony were believed, her intellectual capacity and mental efficiency would necessarily have deteriorated because of the surgery.

4. Offer of proof as to Dr. Cassidy. Evidence was proffered to show that the patient received thirty electric shock treatments by order of Dr. Cassidy while she was under his care. Dr. Sovner wrote that the number of such treatments was "grossly excessive," and that the "psychiatric treatment" given the patient was "grossly improper medical care." Dr. Beuscher opined that the treatment of the patient by electric shock was based on an untenable diagnosis of manic depressive disease and that the treatment by electric shock before pursuing adequate trials of...