The opinion
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14-P-359 Appeals Court
BARBARA GOUDREAULT vs. ERIK NINE.
No. 14-P-359.
Essex. December 8, 2014. - April 30, 2015.
Present: Grainger, Agnes, & Sullivan, JJ.
Medical Malpractice, Tribunal, Expert opinion. Negligence,
Medical malpractice, Doctor, Expert opinion, Causation.
Doctor.
Civil action commenced in the Superior Court Department on
October 30, 2012.
A motion to dismiss was heard by Richard E. Welch, III, J.
Barrie E. Duchesneau for the plaintiff.
Allyson N. Hammerstedt for the defendant.
AGNES, J. The plaintiff, Barbara Goudreault, filed a
medical malpractice suit alleging that on February 7, 2011, the
defendant radiologist Erik Nine, M.D., failed to properly
interpret her mammogram results and recommend necessary follow-
up tests, delaying her breast cancer diagnosis and worsening her
prognosis. In accordance with G. L. c. 231, § 60B, the matter
2
was referred to a medical malpractice tribunal, with the only
issue being that of causation. After a hearing, the tribunal
concluded that there was insufficient evidence "to raise a
legitimate question of liability appropriate for judicial
inquiry." G. L. c. 231, § 60B, inserted by St. 1975, c. 362,
§ 5.1 For the reasons that follow, we reverse.
Background. We first set out the evidence before the
tribunal, in the light most favorable to Goudreault. See Cooper
v. Cooper-Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010).
a. Course of diagnosis and treatment. On July 26, 2010,
Goudreault went to Anna Jaques Hospital for a routine bilateral
screening mammogram, which was found to be abnormal. The
reporting doctor (not the defendant) concluded, relevantly here,
that "[i]n the left lower outer breast there [was] a [one-
centimeter] ovoid well-defined nodule which [was] new compared
to the prior studies," adjacent to which was, in the left upper
outer breast, a "small cluster [of] microcalcifications . . .
associated with a small well defined density." The doctor
recommended a bilateral breast ultrasound, spot compression
mammograms and true lateral mammograms of both breasts, and
1
After the tribunal's decision, Goudreault did not post the
$6,000 bond required by the statute in order to proceed, and her
action was thus ordered dismissed. This appeal is from the
resulting judgment. See Lucas v. Collins, 51 Mass. App. Ct. 30,
30 (2001), citing McMahon v. Glixman, 379 Mass. 60, 63-64
(1979).
3
magnification mammograms of the left upper outer breast. The
doctor's report assessed Goudreault in "category 0" -- "need[s]
additional imaging evaluation."
Complying with the recommendation, four days later, on July
30, 2010, Goudreault returned for the diagnostic mammograms and
ultrasound. The same doctor (again, not the defendant) reported
the findings, which included that "[t]he microcalcifications in
the left upper outer breast are two in number and are both
rounded. This is not worrisome appearance but they are new
since the prior mammogram, and 6-month follow-up is recommended.
The small nodular density that they appear to be associated with
corresponds to a [normal appearing] lymph node on targeted
ultrasound." No further work-up was recommended for the lymph
node, and while the doctor concluded that the "[n]ew
microcalcifications in the left upper outer breast do not appear
suspicious, . . . surveillance would be prudent and [a] 6-month
follow-up magnification mammogram of the left upper outer breast
is recommended." Goudreault was assessed as within "category
3," indicating "[p]robably benign finding: [s]hort interval
follow-up suggested."
On February 7, 2011, Goudreault returned to Anna Jaques
Hospital for her six-month follow-up left breast mammogram. The
defendant interpreted and reported the results of her mammogram
4
films.2 Dr. Nine reported that there was "no evidence of a new
dominant mass." He made note of the calcifications within the
left upper outer quadrant, stating that they had not
significantly changed in size, number, or appearance from the
prior exam and were "likely benign." Dr. Nine reported there
were "no new suspicious clustered microcalcifications[,]
architectural distortions[,] or skin abnormalities." He did not
recommend any immediate further tests, such as a biopsy or a
magnetic resonance imaging (MRI) study. He instead recommended
continued surveillance with another six-month follow-up
evaluation "to assure interval stability." He assessed
Goudreault as remaining in category 3. Goudreault did not
attend her six-month follow-up, despite efforts by the hospital
to reach out to her and remind her of the appointments.3
On February 13, 2012, approximately one year after Dr. Nine
read her mammogram, Goudreault returned to Anna Jaques Hospital
for follow-up diagnostic mammography. The radiologist (who was
not Dr. Nine) noted that the findings of the left breast
2
Dr. Nine only read and reported on Goudreault's February
7, 2011, mammogram films, and no other tests that she underwent
at any time.
3
Goudreault missed her six-month follow-up appointment on
August 8, 2011. On September 14, 2011, she was telephoned and a
new appointment was rescheduled for September 19, 2011, which
Goudreault missed. After making telephone calls and sending
four letters (one by certified mail) to Goudreault, a nurse
reached out on January 23, 2012, to Dr. Castagliola,
Goudreault's primary doctor, to initiate contact with her again.
5
mammogram were "highly suspicious for malignancy." The report
indicated that there was "a lobular mass . . . with
architectural distortion measuring approximately [two
centimeters]" in the upper outer quadrant posteriorly, with "new
clustered pleomorphic microcalcifications" to the anterior.4
Goudreault was now assessed in "category 5": "Highly suspicious
for malignancy and appropriate action should be taken."
Based on the February 13, 2012, findings, the doctor
recommended further tests. Goudreault underwent a left breast
biopsy on March 15, 2012, which revealed the presence of
invasive ductal carcinoma. Goudreault returned on April 6,
2012, for a diagnostic breast MRI. That MRI documented "a 2.8 x
1.2 x 1.0 cm in diameter enhancing mass in the upper outer left
breast" with some anterior extension. The entire area measured
approximately 6.5 centimeters, and the known malignancy had
"tendrils of enhancement extending anteriorly from it which
[were] worrisome for regional spread of [the] disease." On May
17, 2012, Goudreault underwent a recommended left breast
modified radical mastectomy, followed by postoperative
chemotherapy.
4
The report noted that a contemporaneous ultrasound
"confirm[ed] a solid irregular shaped mass in the upper outer
quadrant with an associated suspicious rounded and micro lobular
axillary lymph node."
6
b. Expert opinion evidence. On November 1, 2013,
Goudreault presented an offer of proof to the tribunal that
included two letters from medical experts Kishan Yalavarthi,
M.D.,5 and Andrew Schneider, M.D.6
In his letter Dr. Yalavarthi, a radiologist, asserted that,
in his professional opinion, and to a reasonable degree of
medical certainty, Goudreault suffered a significant delay in
the diagnosis and treatment of her breast cancer as the direct
result of the substandard care rendered to her by Dr. Nine.
Specifically, after Dr. Yalavarthi reviewed the mammogram films
dated February 7, 2011, he identified two problems with the care
rendered by Dr. Nine on that day. First, Dr. Nine "failed to
identify and report a concerning area of a larger, more solid,
asymmetric and spiculated density with architectural distortion
in the upper outer region of the left breast at the 1-2 o'clock
position." This area had "clearly increased in size" since the
mammogram and ultrasound in July of 2010, in Dr. Yalavarthi's
5
Dr. Yalavarthi is a physician licensed to practice
medicine in Missouri. He is board certified in diagnostic
radiology by the American Board of Radiology and familiar with
the standard of care for radiologists in Massachusetts during
the relevant time.
6
Dr. Schneider is a physician licensed to practice medicine
in Florida. He is board certified in internal medicine and
oncology and is familiar with the diagnosis, treatment, staging,
prognosis, and natural progression of breast cancer.
7
opinion.7 Secondly, Dr. Nine "failed to offer, order, and/or
perform further diagnostic/imaging studies to rule out cancer,
such as ultrasound, MRI, and biopsy." Dr. Yalavarthi's letter
concluded that, "[a]s a direct result of the substandard care
rendered by Dr. Nine, Ms. Goudreault's left breast cancer was
not diagnosed until March 2012. Had Dr. Nine rendered care in
accordance with the accepted standard of care as outlined
above,[8] Ms. Goudreault would have undergone additional left
breast imaging such as an ultrasound, MRI and/or biopsy and,
more likely than not, her cancer would have been diagnosed as
early as February 2011."
7
Dr. Yalavarthi added, "Having reviewed the mammogram and
ultrasound films dated [February 7, 2011,] and [February 13,
2012], it is my professional opinion that the lobular mass seen
on the [latter] mammogram is the same area of asymmetric and
spiculated density with architectural distortion seen in the 1-2
o'clock position on the [February 7, 2011,] mammogram and
ultrasound films that had now increased in size by about [forty
percent] which Dr. Nine failed to identify and report."
8
Previously, Dr. Yalavarthi had set out the standard of
care as follows:
"The accepted standard of care from 2010 through the
present requires the average qualified radiologist
interpreting mammogram films to identify and report the
presence of any abnormality in the breast. If a mammogram
demonstrates the presence of an abnormal and/or worrisome
finding suspicious for malignancy, then the accepted
standard of care requires the average qualified radiologist
to offer, order, and/or perform further diagnostic/imaging
studies to rule out cancer, such as ultrasound, MRI, and
biopsy."
8
In a second expert opinion letter, Dr. Schneider, an
oncologist, asserted that, in his professional opinion and to a
reasonable degree of medical certainty, as a direct result of
the deviations from the accepted standard of care by Dr. Nine as
set forth in Dr. Yalavarthi's expert opinion letter,
Goudreault's left breast cancer "went undiagnosed and untreated
for over [thirteen] months, resulting in a significant increase
in size of the tumor and spread beyond her left breast to her
lymph nodes, and a worsened prognosis and loss of chance for
cure." Dr. Schneider also opined, "Had Dr. Nine rendered care
in accordance with the accepted standard of care as outlined
above, Ms. Goudreault would have undergone further
diagnostic/imaging studies such as ultrasound, MRI, and/or
biopsy and, more likely than not, her cancer would have been
diagnosed as early as February 2011, when it was at an earlier
stage and amenable to cure."
Discussion. a. Standard of review. A plaintiff's offer
of proof before a medical malpractice tribunal must "(1) show
that the defendant is a provider of health care as defined in
G. L. c. 231, § 60B; (2) demonstrate that the health care
provider did not conform to good medical practice; and (3)
establish resulting damage." Saunders v. Ready, 68 Mass. App.
Ct. 403, 403-404 (2007). See Santos v. Kim, 429 Mass. 130, 132-
134 (1999); Washington v. Cranmer, 86 Mass. App. Ct. 674, 675
9
(2014).9 Because the determination of sufficiency before a
tribunal is a factual one, Kopycinski v. Aserkoff, 410 Mass.
410, 413 (1991), the tribunal's task is "akin to a trial judge's
evaluation of a motion for a directed verdict." Cooper v.
Cooper-Ciccarelli, 77 Mass. App. Ct. at 91, citing Little v.
Rosenthal, 376 Mass. 573, 578 (1978). The tribunal may not
examine the weight or credibility of the evidence. Cooper v.
Cooper-Ciccarelli, supra. Instead, it must view the evidence
contained in the offer of proof in the light most favorable to
the plaintiff. Ibid., citing Blake v. Avedikian, 412 Mass. 481,
484 (1992). Under this standard, the tribunal must find the
plaintiff's offer of proof sufficient "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. If any such
combination of circumstances could be found it is, for present
purposes, immaterial how many other combinations could have been
found which would have led to conclusions adverse to the
plaintiff." Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301,
302 (1943). See Thou v. Russo, 86 Mass. App. Ct. 514, 516
9
The relevant standard of care is the one that applies to
"the average qualified physician in his or her area of
specialty." Medina v. Hochberg, 465 Mass. 102, 106 (2013).
This question can generally only be answered with the aid of
expert opinion. See Kapp v. Ballantine, 380 Mass. 186, 190 &
n.4 (1980).
10
(2014). In particular, this standard requires the tribunal to
draw all reasonable inferences favorable to the plaintiff and
prohibits the tribunal from drawing any unfavorable inferences,
an option reserved for the fact finder at trial. See McLaughlin
v. Bernstein, 356 Mass. 219, 224 (1969). See also Graci v.
Massachusetts Gas & Elec. Light Supply Co., 7 Mass. App. Ct.
221, 225 (1979).
It is the plaintiff's burden to introduce an "'offer of
proof' that persuades the tribunal 'that a legitimate question
of liability ha[s] been raised.'" Nickerson v. Lee, 42 Mass.
App. Ct. 106, 109 (1997), quoting from Little v. Rosenthal, 376
Mass. at 578-579. Ordinarily, such analysis must be undertaken
for each of the three aforementioned elements before the
tribunal. Here, however, we may narrow our focus to the only
contested issue in the case -- that of causation.10 Testimony of
an expert that a causal relation is "possible, conceivable or
reasonable, without more," is not enough to establish causation.
Berardi v. Menicks, 340 Mass. 396, 402 (1960). Likewise, such
testimony must go beyond pure speculation, conjecture, or
assumption. See Blood v. Lea, 403 Mass. 430, 434 (1988);
Keppler v. Tufts, 38 Mass. App. Ct. 587, 592 (1995).
10
There is no question that Dr. Nine was shown to be a
provider of health care, and defense counsel candidly and
correctly acknowledged to the tribunal that Goudreault had met
her burden, for the tribunal's purposes, to establish the
standard of care and its breach.
11
b. Causation. Viewing the evidence in the light most
favorable to Goudreault, the tribunal was presented with an
offer of proof, including expert witness opinions from Dr.
Yalavarthi and Dr. Schneider, that both identified Dr. Nine's
deviation from the appropriate standard of care on February 7,
2011, and the relationship between that deviation and the harm
suffered by Goudreault. The offer of proof here explicitly
stated that, when Dr. Nine read Goudreault's February 7, 2011,
mammogram films and failed to report an enlarged mass in the
upper outer region of the left breast and order further tests
immediately, he deviated from the appropriate standard of care.
Both doctors specifically identified the causal relationship
between that departure on February 7, 2011, and a delay in
diagnosis of her breast cancer, leading to a worsened prognosis,
and actual harm.11
11
The harm suffered by Goudreault as a result of losing the
benefit of an accurate mammogram reading and appropriate follow-
up recommendation by Dr. Nine is no less concrete than the harm
suffered by plaintiffs in the loss of chance for a cure cases.
See Matsuyama v. Birnbaum, 452 Mass. 1, 3 (2008) ("[T]he loss of
chance doctrine views a person's prospects for surviving a
serious medical condition as something of value, even if the
possibility of recovery was less than even prior to the
physician's tortious conduct. Where a physician's negligence
reduces or eliminates the patient's prospects for achieving a
more favorable medical outcome, the physician has harmed the
patient and is liable for damages. Permitting recovery for loss
of chance is particularly appropriate in the area of medical
negligence"); Renzi v. Paredes, 452 Mass. 38, 39-40 (2008);
Curreri v. Isihara, 80 Mass. App. Ct. 193, 195-196 (2011) ("In a
medical malpractice case, the burden is on the plaintiff to
12
Dr. Yalavarthi stated that, had Dr. Nine made the
appropriate diagnosis on February 7, 2011, and ordered the
appropriate tests, it is more likely than not that Goudreault
would have benefitted from a diagnosis of cancer "as early as
February 2011."12 Dr. Schneider reiterated that, "more likely
than not, her cancer would have been diagnosed as early as
February 2011, when it was at an earlier stage and amenable to
cure." Therefore, based on Dr. Yalavarthi's and Dr. Schneider's
expert opinions, it may be inferred that had Dr. Nine complied
with the appropriate standard of care, Goudreault's cancer would
have been diagnosed nearly one year earlier, and at a time when
it was "amenable to cure." These expert opinions, along with
the relevant medical records, satisfied Goudreault's obligation
establish a causal connection between the alleged negligence of
a defendant and any damages. . . . Under a loss of chance
theory, a 'plaintiff must prove by a preponderance of the
evidence that the physician's negligence caused the plaintiff's
injury, where the injury consists of the diminished likelihood
of achieving a more favorable medical outcome'"), quoting from
Matsuyama v. Birnbaum, supra at 17.
12
Dr. Yalavarthi, specifically, outlines how important
accurate results are in routine periodic mammograms, stating
that "[i]t has been well recognized from 2010 to the present
that breast imaging studies, such as mammograms, are a valuable
screening tool used to detect changes in the breast tissue that
are suspicious for malignancy." Dr. Yalavarthi goes on to say,
as noted previously, that "[h]ad Dr. Nine rendered care in
accordance with the accepted standard of care as outlined above,
Ms. Goudreault would have undergone additional left breast
imaging such as ultrasound, MRI/or biopsy and, more likely than
not, her cancer would have been diagnosed as early as February
2011."
13
to make an offer of proof to the tribunal that establishes the
existence of both medical negligence and causation. See
DiGiovanni v. Latimer, 390 Mass. 265, 269 (1983) (tribunal may
not appraise weight or credibility of evidence); Cooper v.
Cooper-Ciccarelli, 77 Mass. App. Ct. at 91 (same).
Dr. Nine argues that his care on February 7, 2011, at most,
delayed Goudreault's diagnosis by six months because he
recommended that she follow up with another mammogram six months
from the date he read and interpreted her mammogram. It was
Goudreault herself, Dr. Nine points out, who chose not to attend
her six-month follow-up appointment, despite receiving calls and
letters from the office. Under this theory, because only six
months of delay were attributable to Dr. Nine's deviation from
the standard of care, and the remainder was attributable to
Goudreault, she had an obligation to submit an offer of proof
addressing the harm caused by the six-month delay. Instead, the
theory goes, because both of Goudreault's expert opinion letters
refer to a delay of thirteen months, they necessarily fall
short. While Dr. Nine is correct that his conduct was not the
only factor that contributed to the thirteenth-month delay, this
does not diminish the sufficiency of Goudreault's offer of
proof. Based on the opinions of Goudreault's experts, Dr. Nine
violated the standard of care he owed to her when he failed to
order further diagnostic tests immediately at her February 7,
14
2011, exam -- tests that would have detected the cancer at the
time. When a negligent act, such as one yielding a failure to
diagnose cancer, is followed by a reasonably foreseeable
intervening event, such as a patient's delay in attending a
routine follow-up appointment that eventually leads to the
diagnosis of cancer, "the causal chain of events remains intact
and the original negligence remains a proximate cause of a
plaintiff's injury." Delaney v. Reynolds, 63 Mass. App. Ct.
239, 242 (2005).13 It is not unforeseeable that a patient might
delay undergoing a routine, six-month follow-up examination when
informed erroneously that there has been no change in her
condition.14
Conclusion. We determine that the plaintiff presented a
sufficient offer of proof to raise a "legitimate question of
liability appropriate for judicial inquiry." G. L. c. 231,
13
It is only when "the intervening event [is] of a type so
extraordinary that it could not reasonably have been foreseen,
that [the] new event is deemed to be the proximate cause of the
injury and relieves a defendant of liability." Delaney v.
Reynolds, 63 Mass. App. Ct. at 242.
14
It is a permissible inference that Goudreault would have
responded promptly to obtain follow-up diagnostics if Dr. Nine
had recommended them in February of 2011, because when
Goudreault was told for the first time in February of 2012 that
her scans were suspicious for cancer and that immediate further
testing was necessary, she took immediate action. To determine
that Goudreault would have delayed scheduling a follow-up exam
or testing even if Dr. Nine had read her mammogram correctly
requires speculation and a weighing of the evidence that is not
the function of the tribunal.
15
§ 60B. The judgment is reversed, the finding of the tribunal is
set aside, and a new tribunal finding shall enter in favor of
the plaintiff. The case is remanded for further proceedings
consistent with this opinion.
So ordered.