Lubanes v. George

• Decision Date: 25 May 1982
• Citation: 435 N.E.2d 1031,386 Mass. 320
• Parties: Joseph P. LUBANES et al. 1 v. John E. GEORGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1031

435 N.E.2d 1031

386 Mass. 320

Joseph P. LUBANES et al. ¹ v. John E. GEORGE.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 8, 1982.

Decided May 25, 1982.

Roger J. Brunelle, Worcester, for plaintiffs.

Douglas L. Fox, Worcester, for defendant.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff, Joseph P. Lubanes, brought an action against the defendant, Dr. John E. George, seeking to recover for damages arising out of a surgical procedure performed by Dr. George on Lubanes. Counts one and two allege that the defendant was negligent in his treatment and care of the plaintiff; counts three and four allege that the defendant performed an operation on the plaintiff without the plaintiff's informed consent and contrary to the plaintiff's express instructions. ²

A medical malpractice tribunal was convened pursuant to G.L. c. 231, § 60B. At the hearing before the tribunal, the plaintiff offered no evidence in support of his negligence claim. His offer of proof concentrated solely on his allegation that the defendant had performed an unauthorized operation. ³ Following the hearing, the tribunal issued a decision which concluded that, with respect to the plaintiff's negligence claim, the plaintiff's offer of proof "would not be sufficient to raise a legitimate question of liability appropriate for judicial inquiry." As to the claim relating to unauthorized surgery, the tribunal determined that it "raises no appropriate question for decision by a Medical Malpractice Tribunal." It is evident from the transcript of the hearing that the latter decision was based on the view that the plaintiff's battery claim was not within the scope of the medical malpractice tribunal statute.

The plaintiff filed several motions, one of which sought clarification by the tribunal regarding whether a bond was required in order for the plaintiff to pursue his claim. ⁴ The motions were all denied, except with respect to certain matters concerning technical errors in the text of the tribunal's decision. The plaintiff failed to post a $2,000 bond pursuant to G.L. c. 231, § 60B, and after the expiration of thirty days from the date of the tribunal's decision, a clerk of the Superior Court entered a judgment of dismissal as to counts one and two of the plaintiff's complaint, the negligence counts. The plaintiff appeals this judgment. He claims (1) that the tribunal erred in ruling that a complaint alleging unauthorized surgery raises no appropriate question for a medical malpractice tribunal, (2) that the judge erred in entering a judgment for the defendant as to the negligence counts, and (3) that the judge further erred in refusing to amend the decision of the tribunal so as to specify whether the plaintiff was required to post a bond before proceeding to trial. We agree with the plaintiff as to the first claim of error and, for reasons stated below, we vacate the judgment heretofore entered, and order that further proceedings be held before the malpractice tribunal.

We summarize the facts as stated in the plaintiff's offer of proof, read in a light most favorable to him. On December 1, 1977, the plaintiff visited the defendant concerning a skin problem on his left large toe. After examining the plaintiff's toe, the defendant told the plaintiff that he had a fungus in that area. The doctor recommended that the nail of the great left toe be removed, and the plaintiff agreed. Approximately two weeks later the plaintiff returned to the defendant's office to have the toenail removed. The plaintiff expressed some concern about possible surgery, whereupon the defendant assured him that only the toenail would be removed, and that there would be no surgery, and no "cutting." The plaintiff was then asked to sign a "consent to operate" form. Although the consent form lists "Hallix nail removal" and "subungual exostosis" as the procedures to be performed, the plaintiff states that the latter procedure was not on the consent form when he signed it. The defendant removed the plaintiff's toenail, and also performed on the end of the toe a subungual exostectomy, a procedure in which a bony growth is surgically removed. As a result of the subungual exostectomy, the plaintiff has suffered continuing pain and discomfort in his toe.

1. Although the parties have not addressed the issue, we are met at the outset with the question whether the plaintiff's appeal should be dismissed as interlocutory and not appealable. Since the Superior Court proceedings resulted in the dismissal of only a portion of the plaintiff's case, it could be said that this appeal is premature. See Mood v. Kilgore, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2031, 2034-2035, 425 N.E.2d 341. Compare McMahon v. Glixman, 379 Mass. 60, --- - ---, Mass.Adv.Sh. (1979) 2277, 2279-2282, 393 N.E.2d 875 (appeal appropriate where tribunal's order invoked dismissal of plaintiff's entire case), with Vincent v. Plecker, 319 Mass. 560, 564, 67 N.E.2d 145 (1946) ("Where there is but a single controversy in the case, it is true that a decree that leaves a part of that controversy undecided ... is interlocutory and not final"). ⁵ Nevertheless, in view of the importance of resolving the procedural uncertainties present in actions subject to G.L. c. 231, § 60B, and the omission of the defendant to raise the interlocutory aspect of the appeal, we find it appropriate to address the merits of the plaintiff's arguments.

2. The plaintiff argues that a complaint alleging unauthorized surgery raises an appropriate question for a medical malpractice tribunal. He further states that his offer of proof as to the unauthorized surgery, viewed in a light most favorable to the plaintiff, presented a question appropriate for further judicial inquiry. We agree.

A medical malpractice tribunal has jurisdiction over actions for "malpractice, error or mistake against a provider of health care." G.L. c. 231, § 60B, inserted by St.1975, c. 362, § 5. On two prior occasions this court has addressed the question whether a particular claim falls within the scope of the statute. In Little v. Rosenthal, 376 Mass. 573, 382 N.E.2d 1037 (1978), we held that an action under G.L. c. 93A, § 9, alleging that a nursing home committed an unfair or deceptive trade practice by rendering negligent care, was appropriately subject to the tribunal screening process. The court stated that "all treatment-related claims were meant to be referred to a malpractice tribunal." Id. at 576, 382 N.E.2d 1037. The following year, in Salem Orthopedic Surgeons, Inc. v. Quinn, 377 Mass. 514, 386 N.E.2d 1268 (1979), we held that an action for breach of a contract to produce a particular medical result was one for "malpractice, error or mistake." While the legislative history of the statute was found to be inconclusive on the issue, the court in Quinn concluded that the policy embodied in § 60B of discouraging frivolous claims against physicians would be furthered by including such actions within its scope. The court also noted that, as a practical matter, "(t)he dissimilarity between an ordinary malpractice action and one based on (a contract to produce a particular medical result) ... may not become apparent until a late stage in judicial proceedings." ⁶ Id. at 519, 386 N.E.2d 1268.

The performance of a surgical procedure by a physician without the patient's consent constitutes professional misconduct. See Reddington v. Clayman, 334 Mass. 244, 245-247, 134 N.E.2d 920 (1956); Schloendorff v. Society of N. Y. Hosp., 211 N.Y. 125, 129-130, 105 N.E. 92 (1914), overruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). As such, we think it is a type of "malpractice" within the meaning of G.L. c. 231, § 60B. ⁷ Certainly the performance of an unauthorized surgery is as much a form of malpractice as is the failure to produce a promised medical result. Compare Reddington v. Clayman, supra, with Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973). Consequently, we follow the Quinn case and hold that a claim against a physician alleging that he performed a surgical procedure on the plaintiff without the plaintiff's consent is subject to the medical malpractice tribunal statute.

In addressing a claim alleging unauthorized surgery, a malpractice tribunal should "evaluate only the medical aspects of a malpractice claim for the purpose of distinguishing between cases of tortious malpractice and those involving 'merely an unfortunate medical result.' " Quinn, supra 377 Mass. at 521, 386 N.E.2d 1268. The narrow focus of a tribunal's inquiry in cases such as this one is limited to determining whether the procedure actually performed is or is not the procedure admittedly authorized by the plaintiff. Cf. Reddington v. Clayman, supra 334 Mass. at 246, 134 N.E.2d 920. ⁸

It is evident that the plaintiff's offer of proof before the tribunal was sufficient to raise a question appropriate for further judicial inquiry. According to the plaintiff's affidavit and other documents, which we accept as true, see McMahon v. Glixman, supra 379 Mass. at ---, Mass.Adv.Sh. (1981) at 2284, 393 N.E.2d 875, Little v. Rosenthal, supra 376 Mass. at 578, 382 N.E.2d 1037, the plaintiff consented only to the removal of his toenail, and did not consent to any other surgery. In addition to removing the toenail, the defendant performed another surgical procedure, a subungual exostectomy, on the point of the plaintiff's toe. On the issue of consent, the plaintiff made a sufficient offer by his statement that he had consented only to the removal of his toenail.

3. The plaintiff argues that, because his offer of proof on his battery claim raises a legitimate question appropriate for judicial inquiry, he should be allowed to go forward with his entire case without the necessity of posting a bond. ⁹ He here relies on Kapp v. Ballantine, 380 Mass. 186, 402 N.E.2d...