Goudreault v. Nine (Lawyers Weekly No. 11-041-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]