In a post last week, I raised concerns that several recent Appeals Court decisions issued pursuant to Rule 1:28 had significant potential for misuse and mischief due to their abbreviated recitation of the facts of the case. Never intended to be a full exposition of either the law or the facts, these decisions have become increasingly more prominent both due to their number and their wider availability.
One of these potentially misleading decisions is Bodden v. Nicholson, issued on March 7, 2014. On its face, it appears to be a plaintiff’s routine appeal from an unfavorable finding by a medical malpractice tribunal regarding the sufficiency of the offer of proof as to certain defendants. But in its attempt to explain the three-judge panel’s reasoning, the decision reads more like an impermissible consideration of the weight of various evidence before the tribunal.
I don’t for a second believe that this panel intended to change the well-settled law in Massachusetts that a medical malpractice tribunal must review the plaintiff’s offer of proof against a directed verdict standard. The tribunal is not permitted to judge the credibility of the evidence presented, and must draw all inferences in favor of the plaintiff, leaving the weight of the evidence for the factfinder at trial.
But a reader of the Bodden opinion might well think that the panel ignored this rule. In discussing the expert opinion in offer of proof, the panel stated, ” [f]urthermore, Dr. Rohrer did not address significant facts in the plaintiff’s medical records. He ignored the fact that the plaintiff fell and developed swelling redness, fever and a blister on top of her right foot after the September 29, 2010, visit to Dr. Lirofonis; and that notwithstanding his instructions to report to the emergency room upon the appearance of any complications, the plaintiff did not report to the emergency room until two to three days after the start of the complications. More significantly, Dr. Rohrer ignored the appearance of a blister, which grew into a larger blister, on top of the plaintiff’s right foot after the visit to Dr. Lirofonis. Dr. Rohrer only discussed the wound on the bottom of plaintiff’s right foot, and opined, contrary to the facts set forth in the medical records, that it was the source of plaintiff’s infection and resulting complications.” [emphasis added].
Well, that certainly sounds like a weighing of evidence, and a choice to accept the medical records over an expert’s contrary opinion. That may not be accurate, but a reader would never know that. And that’s where the danger lies. Because defense lawyers seize on this type of opinion and use it to convince inexperienced judges or medical panel members that they are permitted to choose one version of the facts over another. And that’s simply not the law. While a jury might ultimately decide to accept contemporaneous medical records over an expert’s opinion, that is not the tribunal’s function. Those records are not infrequently wrong–sometimes because they are evidence of a negligent misdiagnosis, and sometimes because they are created to protect colleagues.
The notion that unpublished opinions could be cited for “persuasive” but not “precedential” effect was well-intentioned, and recognizes that many of these opinions address common and recurring factual scenarios, and therefore may well be helpful to lawyers and judges in future cases. But there is a real danger that the brief treatment of the facts leaves a misleading impression about what the case really holds.