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Where (1) a medical malpractice plaintiff’s motion to impound her medical records was denied and (2) her complaint was later dismissed based on the insufficiency of the plaintiff’s offer of proof, the judge’s decision on impoundment was not outside the bounds of reasonable alternatives and did not stand as an impediment to the ability of the plaintiff’s expert to state the standard of care and to identify the departure from the standard of care with respect to the individual medical provider defendants.
Affirmed.
“After a hearing in Superior Court, a medical malpractice tribunal convened pursuant to G.L.c. 231, §60B, determined that the plaintiff’s offer of proof, including an expert report, was insufficient to allow the plaintiff’s claim to go forward without posting a bond. After the plaintiff failed to pay the bond, the case was dismissed. The report by the plaintiff’s expert was based on a review of the plaintiff’s medical records, which were not provided to the tribunal. The plaintiff had sought to submit the records in a manner that would shield them from public disclosure, but when her motion to impound the records was denied, she elected not to submit them at all. On appeal, the plaintiff contends that the motion judge erred in denying her motion to impound and the tribunal erred in determining that the offer of proof was insufficient. We affirm. …
“Shortly after filing her complaint for medical malpractice, the plaintiff filed a motion to impound her medical records on the basis that ‘information contained in medical records is private and protected and should be treated as confidential.’ The judge denied the motion for failure to set forth ‘good cause’ as required by Rule 7 of the Uniform Rules on Impoundment Procedure (2015). … On appeal, the plaintiff claims that the judge erred in determining that she failed to show good cause for impoundment. She contends that the privacy and confidentiality afforded medical records in various legal contexts establishes good cause for impoundment, without any further showing. …
“Here, the judge could have considered that this was a medical malpractice case in which the plaintiff’s medical records were central to the litigation. Although the plaintiff has an interest in the privacy of her medical information, the defendants also have an interest in their professional reputations. The judge could have considered that the plaintiff’s publicly filed offer of proof already contained substantial details from her medical records. A narrowly tailored impoundment order would presumably exclude information already in the public domain. It was incumbent on the plaintiff to specify which specific documents or portions thereof she sought to impound. The judge afforded the plaintiff an opportunity to make a more particularized request, but the plaintiff declined. Under the circumstances, we cannot say that the judge’s decision on impoundment was ‘outside the bounds of reasonable alternatives’ (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 184 (2014). …
“The plaintiff’s offer of proof was supported by an ‘expert opinion letter and report’ (letter) of a general and acute care surgeon and surgical intensivist. The letter stated that he had reviewed the plaintiff’s emergency department notes and reports, radiology imaging and reports, operative notes and anesthesia records, progress and consultation notes, pathology reports, and discharge summary. The letter summarized the plaintiff’s hospital course, detailing the plaintiff’s symptoms, the results of testing performed, and the measures taken to treat the plaintiff. It was written, however, entirely in passive voice, without identifying any individual (by name, position, or role) who took or failed to take any specific action. …
“The plaintiff’s offer of proof in this case suffered from two distinct infirmities. First, the letter fails to identify any of the defendants as being responsible for any poor medical practice, or indeed for anything that happened at the hospital. …
“Second, although the letter identifies a series of ways in which some unidentified defendant or defendants failed to meet ‘the standard of care,’ it does not specify what the standard of care in each instance actually required. The letter does not provide the tribunal an adequate basis on which to evaluate the care given. …
“Essentially, the letter restates the allegations in the complaint and concludes, ‘Based on my review of the aforementioned records, it appears there have been several instances where the standard of care was not met, including a misdiagnosis, delayed diagnosis, and delayed treatment,’ without establishing whether these outcomes were the result of medical providers not conforming to good medical practice. …
“To the extent that the plaintiff contends that the allegedly erroneous denial of her motion to impound medical records deprived her of the ability to meet her proof, the facts do not bear this out. In an offer of proof to a medical malpractice tribunal, extrinsic evidence is not required to substantiate factual allegations in an expert report. … Although the tribunal did not have the plaintiff’s medical records, the expert did. The denial of the motion to impound did not stand as an impediment to the expert’s ability to state the standard of care and to identify the departure from the standard of care with respect to the individual medical provider defendants. Accordingly, the plaintiff’s offer of proof was insufficient, and her complaint was properly dismissed.
Dissenting judge’s comments
Rubin, J. “If the facts provided to the medical malpractice tribunal are proven, we have before us an obvious case of medical malpractice committed upon a nineteen year old that caused serious injury. The court, however, declines to allow the injured young woman to go forward with her suit. It affirms a plainly erroneous ruling of the motion judge denying impoundment of her medical records, a ruling that effectively limited what the young woman could include in her offer of proof before the medical malpractice tribunal. Indeed, today’s decision is the only Massachusetts appellate case I have been able to find, published or unpublished, that has ever upheld an order denying the impoundment of medical records.
“The appropriate way to proceed would be for us to reverse that ruling of the motion judge, order the young woman’s medical records impounded, and remand to allow those records to be submitted to the medical malpractice tribunal for its consideration. Private individuals’ medical records are routinely impounded in the circumstances of this case. A meritless opposition to her motion to impound — a motion that was, in fact, quite reasonably unopposed by all the defendants save one — does not provide a proper ground for terminating this young woman’s apparently meritorious medical malpractice claim. Indeed, if the motion judge’s ruling is upheld, many injured individuals may be deterred from bringing their own meritorious malpractice claims.
“Further, in my view, even if we do not reverse the denial of the plaintiff’s motion to impound, what remained in the offer of proof, even without the medical records, was nevertheless by itself sufficient to meet the low bar before the medical malpractice tribunal. …
“The court concludes the offer of proof does not raise such an issue essentially because, unaccompanied by the medical records, it does not (because it could not) specify which individual provider of medical care took which step in the process of misdiagnosing the plaintiff and failing to treat her in a timely manner. But, as we recently explained in Feliciano [v. Attanucci, 95 Mass. App. Ct. 34 (2019)], the details of who had responsibility for what at the hospital is not something the plaintiff is required to know at this stage of the litigation, and its absence from the offer of proof does not defeat a conclusion that the offer is sufficient to raise a legitimate question of liability. …
“For these reasons, this case should not have been dismissed. I respectfully dissent.”
Dossantos vs. Beth Israel Deaconess Hospital-Milton, Inc., et al. (Lawyers Weekly No. 11-108-24) (34 pages) (Singh, J.) (Rubin, J., dissenting) A motion to impound was heard by Robert B. Gordon, J.; a motion to dismiss was considered by Debra A. Squires-Lee, J., and entry of final judgment was ordered by her. Krzysztof G. Sobczak for the plaintiff; Megan M. Grew Pimentel for Thomas E. Fitzgerald; John D. Bruce for Suzzanne Merithew; John P. Puleo for Jonathan Anderson and others; Daniel Braun for Vanessa Martin and others (Docket No. 22-P-1061) (Nov. 12, 2024).
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