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Sep 2014

The Appeals Court recently issued an interesting rescript opinion pursuant to Rule 1:28 dealing with the Plaintiff’s burden of proof on the issue of causation before a medical malpractice tribunal.  In Gonzalez v. Harder, et al., 86 Mass. App. Ct. 1107, 2014 Mass. App. Unpub. LEXIS 919, the Appeals Court affirmed the Superior Court’s dismissal of Plaintiff’s claims against the Defendant healthcare providers and their employers, after a medical malpractice tribunal found that the Plaintiff’s Offer of Proof was insufficient to raise a legitimate question of liability appropriate for judicial inquiry.   

In Gonzalez, the Plaintiff suffered injuries stemming from a postoperative stroke.  The Plaintiff alleged that the Defendant healthcare providers departed from the acceptable standard of care because they did not familiarize themselves with the Plaintiff’s past medical history of deep vein thrombosis.  The Plaintiff’s medical experts opined that had the healthcare providers known about this past medical history, prophylactic measures to avoid DVT would have been taken and the patient’s postoperative stroke would not have occurred.  The Plaintiff’s theory of causation relied upon a series of specific events, all of which would have had to occur in order for the unfortunate outcome to have been avoided.  In particular, the Plaintiff’s experts argued that had the healthcare providers been aware of his medical history, genetic testing for hypercoagulable disorders would have been ordered and the results would have come back positive.  As a result, the Plaintiff would have been treated with anticoagulant therapy, lessening his chances of forming an embolus, thereby averting his stroke.  The Appeals Court opined that “[w]hile there may be a thread linking the healthcare providers’ ignorance of [Plaintiff’s history of deep vein thrombosis] to his ultimate stroke, it is so attenuated that it did not support a sufficient causal connection.”  Relying on Nickerson v. Lee, 42 Mass. App. Ct. 106, 112 (1997), the Appeals Court held that Plaintiff’s Offer of Proof failed to provide “more than just a conclusory statement,” under which circumstances the Court was constrained to find that the Plaintiff’s stroke was “merely an unfortunate medical result.”    

Although decisions of the Appeals Court pursuant to Rule 1:28 are not binding precedent, the Gonzalez decision represents a strong reminder of the Plaintiff’s burden to provide more than mere conclusory statements in an Offer of Proof if he expects to prevail before a medical malpractice tribunal.


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