St. Germain v. Pfeifer

• Decision Date: 03 August 1994
• Parties: Joseph ST. GERMAIN v. Bernard A. PFEIFER & others. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 848

637 N.E.2d 848

418 Mass. 511

Joseph ST. GERMAIN v. Bernard A. PFEIFER & others. ¹

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 4, 1994.

Decided Aug. 3, 1994.

John W. Ranucci, Providence, RI, for plaintiff.

John DiPietrantonio, Watertown, for Kristin Bartelson.

Douglas N. Perlo, Boston, for Stephen R. Freidberg.

Edward D. Shoulkin, Boston, for Glen Seidman.

Philip E. Murray, Jr., Boston, for Bernard A. Pfeifer.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

These appeals arise out of a medical malpractice action which the plaintiff, Joseph St. Germain, brought against Drs. Bernard A. Pfeifer, Glen Seidman, Stephen R. Freidberg, and Nurse Kristin Bartelson. Two medical malpractice tribunals convened to evaluate the plaintiff's claims pursuant to G.L. c. 231, § 60B (1992 ed.). ² The first tribunal, which considered the plaintiff's claim against Nurse Bartelson, among others, determined that the plaintiff's offer of proof with respect to Nurse Bartelson was insufficient to raise a legitimate question of liability appropriate for judicial inquiry. Consequently, in order to proceed with his malpractice claim against Nurse Bartelson, the plaintiff was required to post a bond within thirty days of the docketing of the tribunal's decision. See note 2, supra. The plaintiff did not do so. After the thirty-day period for filing the bond expired, Bartelson made a motion to dismiss the plaintiff's claim based on his failure to post the bond. A Superior Court judge allowed this motion to dismiss and, pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), separate and final judgment was entered dismissing the plaintiff's claims against Bartelson. A Superior Court judge allowed the plaintiff's motion to extend the time for filing a notice of appeal. See Mass.R.App.P. 4(c), as amended, 378 Mass. 928 (1979). The plaintiff appealed.

The second tribunal, which considered the plaintiff's claims against the three defendant doctors, determined that the plaintiff's offers of proof with respect to Drs. Bernard Pfeifer, Glen Seidman, and Stephen Freidberg were insufficient to raise a legitimate question of liability appropriate for judicial inquiry. ³ As with Nurse Bartelson, the plaintiff did not file the required bond with respect to Drs. Pfeifer, Seidman, or Freidberg. However, with respect to these defendant doctors, the plaintiff did file a motion to reduce the bond on the basis of indigency. See note 2, supra. This motion was not acted on by the court either before the expiration of the thirty-day period or at any time thereafter. After the thirty-day period for filing the bond expired, defendants Pfeifer, Seidman, and Freidberg made a motion to dismiss the plaintiff's claim based on his failure to post the bond. A Superior Court judge allowed this motion to dismiss and, pursuant to Mass.R.Civ.P. 54(b), separate and final judgment was entered dismissing the plaintiff's claims against these defendants. The plaintiff appealed from the dismissal of his complaint.

In his appeal, the plaintiff contends that the tribunals erred in determining that his offers of proof with respect to Nurse Bartelson and Drs. Pfeifer, Seidman, and Freidberg were insufficient to raise a legitimate question of liability appropriate for judicial inquiry, and that the motion judge erred in dismissing his claims against the defendant doctors for failure to post the required bond while his motion to reduce the bond was pending. We transferred the appeal to this court on our own initiative and now hold that the medical malpractice tribunals erred in determining that the plaintiff's offers of proof with respect to Nurse Bartelson and Drs. Pfeifer and Seidman were insufficient to raise a legitimate question of liability appropriate for judicial inquiry. We further hold that the motion judge erred in dismissing the plaintiff's claims against Dr. Freidberg for failure to post the required bond while the plaintiff's motion to reduce the bond was pending.

1. The facts. On August 19, 1988, the plaintiff underwent a mid-lumbar osteotomy performed by Dr. Bernard Pfeifer, an orthopedic surgeon, and Dr. Stephen Freidberg, a neurosurgeon, to alleviate a debilitating spinal deformity. As part of this procedure, fixation hooks and rods were inserted into the plaintiff's spine.

Dr. Pfeifer's postoperative plan was to confine the plaintiff to his hospital bed for the four to five days following the surgery. ^{4 4} Contrary to this plan, at 10 A.M. on August 21, 1988, Dr. Glen Seidman, a first-year orthopedic resident, ⁵ ordered that the plaintiff be given a "warm and form lumbar bandage" (a soft orthopedic support) and be moved "out of bed to chair today." Dr. Seidman wrote both of these orders in the "physician orders" section of the plaintiff's chart. However, in the "progress notes" section of the plaintiff's chart, Dr. Seidman only noted his order for the "warm and form bandage."

At approximately noon on August 21, 1988, Dr. Pfeifer acknowledged Dr. Seidman's "progress note" concerning the "warm and form bandage" and added to the note that the plaintiff was to be x-rayed the next day and, "if okay," was to be moved out of bed to a "tilt table." Dr. Pfeifer apparently did not see the order to move the plaintiff which Dr. Seidman entered in the "physician orders" section of the plaintiff's chart. The "physician orders" and "progress notes" sections of the plaintiff's chart were not on the same page.

The orders of both Dr. Seidman and Dr. Pfeifer were noted by the charge nurse, Kristin Bartelson. Pursuant to Dr. Seidman's order, the nurse on duty in the early morning of August 22, 1988, encouraged the plaintiff to get out of bed and walk. As the plaintiff stood up and took a step, he heard a loud snapping noise in his back and fell backward onto the bed screaming in pain. When Dr. Pfeifer arrived shortly thereafter, he yelled at the nurse, "You should never have moved him! Why in hell did you move him!"

As a result of the plaintiff's movement, the hooks and rods which had been inserted in his spine to hold it together "slipped out" of position. The corrective surgery which the plaintiff underwent to re-position this hardware was not successful.

2. The offers of proof. Under G.L. c. 231, § 60B, the medical malpractice tribunal must determine whether the plaintiff's offer of proof presents evidence which, if substantiated, raises a legitimate question of liability for judicial inquiry. See note 2, supra. In order to raise such a question of liability, a medical malpractice plaintiff must show (1) the existence of a doctor or nurse-patient relationship, (2) that the performance of the doctor or nurse did not conform to good medical practice, and (3) that damage resulted therefrom. See Kapp v. Ballantine, 380 Mass. 186, 193, 402 N.E.2d 463 (1980); Gugino v. Harvard Community Health Plan, 380 Mass. 464, 468, 403 N.E.2d 1166 (1980). In evaluating a plaintiff's offer of proof, the tribunal must apply a standard comparable to that which a trial judge would employ in determining whether to allow a defendant's motion for a directed verdict. See Little v. Rosenthal, 376 Mass. 573, 578, 382 N.E.2d 1037 (1978). Pursuant to this standard, a medical malpractice tribunal must conclude that the plaintiff's offer of proof raises a legitimate question of liability appropriate for judicial inquiry 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." Dobos v. Driscoll, 404 Mass. 634, 656, 537 N.E.2d 558, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850, 110 S.Ct. 149, 107 L.Ed.2d 107 (1989), and cases cited.

a. Nurse Kristin Bartelson. With respect to his claim against Nurse Kristin Bartelson, the plaintiff presented to the medical malpractice tribunal the affidavit of an expert which stated that "As the R.N. giving written notation to Dr. Seidman's orders, ... Bartelson owed a duty of care to [the plaintiff] to either carry out the orders or, if not assigned to direct care, to effectively communicate the orders to the assigned care giver. She should have been aware of [the plaintiff's] care plan and should have known of and reported the inconsistent intentions of Dr. Seidman and Dr. Pfeifer regarding [the plaintiff's] movement.... In my opinion, it is reasonably certain that had Kristin Bartelson been aware of [the plaintiff's] care plan, effectively communicated orders to the assigned care givers, and been aware of and reported the inconsistent intentions of Dr. Seidman and Dr. Pfeifer regarding [the plaintiff's] movement, [the plaintiff] would not have suffered the injuries requiring his further surgery."

Because the plaintiff's offer of proof with respect to his claim against Nurse Bartelson contained evidence which, if substantiated, would reasonably support an inference that a nurse-patient relationship existed between Nurse Bartelson and the plaintiff, that Nurse Bartelson's performance did not conform to good medical practice, and that injury to the plaintiff resulted therefrom, the tribunal erred in determining that the plaintiff's offer of proof as to Nurse Bartelson did not raise a legitimate question of liability appropriate for judicial inquiry.

b. Dr. Bernard Pfeifer. With respect to his claim against Dr. Bernard Pfeifer, the plaintiff presented to the tribunal an affidavit from an expert which read as follows:

"DEVIATION FROM THE ACCEPTABLE MEDICAL STANDARDS:

"The records clearly indicate that the intended postoperative plan was not adhered to. Breach of that plan took place on the second postoperative day ... when Dr. Seidman, on his own volition, gave an order for sitting [the plaintiff] out of bed, having prescribed a soft bandage. By nature, the 'warm and form bandage' has very little immobilizing effect, far less than necessary to protect the...