Opinion
No. 12–P–1104.
2013-05-17
Phillip HASOURIS, executor v. James T. McGLOWAN & another.
This expert testimony does not sufficiently link Dr. McGlowan's oversight of the sleep apnea notation to the injuries suffered by the decedent. Dr. Rothfield does not assert that sleep apnea could cause or contribute to postoperative respiratory problems. Nor does he provide a medical connection between the decedent's breathing difficulties and her low blood pressure and oxygen levels. 6 Without this causal connection, Dr. Rothfield's statements were “speculative and amounted to little more than ‘conclusory allegations.’ “ Keppler, supra. See LaFond v. Casey, 43 Mass.App.Ct. 233, 237–328 (1997). We therefore conclude that the plaintiff failed to meet his burden on the third prong of Kapp because neither Dr. Rothfield's affidavit nor the medical records causally connect Dr. McGlowan's failure to notice the sleep apnea notation to the injuries ultimately suffered by the decedent. The tribunal properly determined that the plaintiff's offer of proof was not sufficient to raise a legitimate question of liability against the defendants.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
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.” G.L. c. 231, § 60B. The plaintiff proceeded without posting a bond, and the Superior Court allowed the defendants' motion to dismiss. The plaintiff now appeals from the conclusion of the medical malpractice tribunal. We affirm.
“The tribunal's task in evaluating the sufficiency of the plaintiff's offer of proof is akin to a trial judge's evaluation of a motion for a directed verdict.” Cooper v. Cooper–Ciccarelli, 77 Mass.App.Ct. 86, 91 (2010), citing Little v. Rosenthal, 376 Mass. 573, 578 (1978). “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.” Kapp v. Ballantine, 380 Mass. 186, 193 (1980). “The evidence is to be viewed in a light favorable to the plaintiff, ... and the tribunal may not examine the weight or credibility of the evidence.” Cooper, supra. The plaintiff argues that his offer of proof at the tribunal was “sufficient to raise a legitimate question of liability” against Dr. McGlowan and, by way of respondeat superior, the other defendants in this appeal. G.L. c. 231, § 60B. The offer of proof rests primarily on the medical reports and the opinion of the plaintiff's expert, Dr. Rothfield. According to the plaintiff, the decedent's death resulted from the failure of the anesthesia team and Dr. McGlowan, as the lead surgeon, to establish postoperative respiratory monitoring where the decedent's medical records indicated that she may have suffered from sleep apnea.
The plaintiff met the first prong of the Kapp standard, because a doctor-patient relationship clearly existed between the decedent and Dr. McGlowan. See Kapp, supra.
Under the second prong of the Kapp standard, the plaintiff must make a sufficient showing that Dr. McGlowan “did not conform to good medical practice.” Kapp, supra. The decedent's possible sleep apnea was noted only on the nurse's assessment, which was performed on the morning of the surgery.
More importantly, Dr. McGlowan was the decedent's orthopedic surgeon, not her anesthesiologist, yet Dr. Rothfield grouped Dr. McGlowan with the anesthesia team. In his affidavit, he states:
The notation read “? sleep apnea.” The nurse's assessment also concluded that the amount and quality of the decedent's sleep was sufficient for her needs, and that she had no sleepwalking or sleeptalking issues.
“The anesthesia team, Elizabeth Marks, PA, Khaled A. Sorour, MD and James T. McGlowan, Jr., MD ... deviated from acceptable standards of medical care when they failed to recognize Mrs. Hasouris' suspected diagnosis of sleep apnea ... and order appropriate postoperative respiratory monitoring....”
This affidavit does not establish how Dr. McGlowan fell below the standards of good medical practice. Dr. Rothfield does not aver that Dr. McGlowan had specifically, or that orthopedic surgeons have generally, a duty under accepted medical practices to arrange for postoperative monitoring of respiratory systems. We also note that no Massachusetts appellate court has imposed liability on the lead surgeon based on the plaintiff's “captain of the ship” theory. See Jacobs & Laurence, Professional Malpractice § 12.10 (2007). Accordingly, Dr. Rothfield's statements—that Dr. McGlowan owed a duty of care, either as part of the anesthesia team or for failure to note the sleep apnea on the nurse's assessment—were “speculative and amounted to little more than ‘conlcusory allegations.’ “ Keppler v. Tufts, 38 Mass.App.Ct. 587, 590 (1995). The plaintiff thus failed to offer sufficient proof that Dr. McGlowan did not conform to good medical practice.
Nor has the plaintiff shown sufficient evidence for the third prong of Kapp, a causal connection between Dr. McGlowan's deviation from accepted medical practice and the injuries suffered by the decedent. See Kapp, 380 Mass. at 193. Dr. Rothfield's affidavit states in pertinent part:
“Had the health care providers, either the attending surgeon, surgical team, anesthesiology team, or nursing staff ... ordered or implemented appropriate respiratory monitoring ..., alarms would have alerted the staff to Mrs. Hasouris' breathing difficulties and appropriate intervention would have prevented respiratory distress and hypoxia.
“Had appropriate intervention occurred ... her respirations would not have deteriorated and appropriate intervention would have prevented the systemic effects of prolonged hypoxia.
“In my professional judgment Mrs. Hasouris' post operative injuries and her death were causally linked to the above delays, failures and deviations.”
This expert testimony does not sufficiently link Dr. McGlowan's oversight of the sleep apnea notation to the injuries suffered by the decedent. Dr. Rothfield does not assert that sleep apnea could cause or contribute to postoperative respiratory problems. Nor does he provide a medical connection between the decedent's breathing difficulties and her low blood pressure and oxygen levels.
In a supplemental affidavit, Dr. Rothfield also opined:
“In my opinion, had Drs. McGlowan, Mashali and Sourour ordered or implemented appropriate respiratory monitoring, after Mrs. Hasouris received general anesthesia for her knee replacement surgery, her respiratory status would not have deteriorated and would have prevented the systemic effects of prolonged lack of oxygen. In my opinion Mrs. Hasouris suffered brain injury from the deprivation of oxygen caused the loss of cognitive function.”
Without this causal connection, Dr. Rothfield's statements were “speculative and amounted to little more than ‘conclusory allegations.’ “ Keppler, supra. See LaFond v. Casey, 43 Mass.App.Ct. 233, 237–328 (1997). We therefore conclude that the plaintiff failed to meet his burden on the third prong of Kapp because neither Dr. Rothfield's affidavit nor the medical records causally connect Dr. McGlowan's failure to notice the sleep apnea notation to the injuries ultimately suffered by the decedent. The tribunal properly determined that the plaintiff's offer of proof was not sufficient to raise a legitimate question of liability against the defendants.
Furthermore, Dr. Rothfield's opinions were based on his review of the decedent's medical records from June 1, 2007, to June 20, 2007. These records do not encompass the July 8, 2007, cardiac arrest or the September, 2008, neurological report stating that shortly after June 23, 2007, the decedent's cognitive and behavioral functions had returned to the baseline. These omissions from Dr. Rothfield's affidavit further attenuate the already weak link between Dr. McGlowan's alleged shortcomings and the ultimate injuries suffered by the decedent.
Judgment affirmed.