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revision and are superseded by the advance sheets and bound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

17-P-1568                                                Appeals Court

 JESUS FELICIANO, personal representative,1        vs.   CARA ATTANUCCI
                           & another.2


                             No. 17-P-1568.

        Suffolk.       September 10, 2018.    -   March 11, 2019.

            Present:   Wolohojian, Lemire, & Englander, JJ.


Medical Malpractice, Tribunal, Appeal, Expert opinion.
     Negligence, Doctor, Medical malpractice, Expert opinion.
     Evidence, Expert opinion. Witness, Expert.


     Civil action commenced in the Superior Court Department on
January 29, 2016.

     A motion to dismiss was considered by Linda E. Giles, J.,
and entry of separate and final judgment was ordered by her.


     Barrie E. Duchesneau for the plaintiff.
     John D. Cassidy for the defendants.
     Lisa Wichter, for Licia Raymond & others, was present but
did not argue.
     Noah A. Rabin, for Lisa Dunn-Albanese & others, was present
but did not argue.




    1   Of the estate of Natasha Feliciano.

    2   Henry Lerner.
                                                                      2


     WOLOHOJIAN, J.   At issue in this appeal is a medical

malpractice tribunal's conclusion that the plaintiff failed to

raise a legitimate question of liability with respect to Dr.

Cara Attanucci and Dr. Henry Lerner, both of whom were involved

in the care of the plaintiff's decedent, Natasha Feliciano

(Feliciano)3 at Newton-Wellesley Hospital, where Feliciano died

after protracted, and then arrested, labor, an emergency bedside

cesarean section, and a subsequent emergency bedside

hysterectomy.   We vacate the judgment of dismissal.

     We summarize the evidence in the plaintiff's offer of proof

in the light most favorable to the plaintiff.    Blake v.

Avedikian, 412 Mass. 481, 484 (1992), citing Kopycinski v.

Aserkoff, 410 Mass. 415, 417-418 (1991).    Feliciano, a healthy

twenty-nine year old mother of two children, was thirty-eight

and one-half weeks pregnant with her third child when she

presented herself at Newton-Wellesley Hospital at 11:28 P.M. on

August 10, 2014, complaining of labor.     She died at the hospital

twenty-five hours later from hemorrhagic shock, disseminated




     3 The plaintiff and the plaintiff's decedent share a
surname. For clarity, we refer hereafter to Jesus Feliciano as
the plaintiff and to Natasha Feliciano as Feliciano.
                                                                   3


intravascular coagulation,4 and amniotic fluid embolism.5

Summarized in general layman's terms, Feliciano died because (a)

the defendants failed to timely recognize that her condition

required a cesarean section, and Feliciano "coded," (b) the

defendants failed to ensure, after performing an emergency

bedside perimortem cesarean section, that Feliciano's abdomen be

left open to monitor for uterine bleeding and failed to place

her in or near an operating room in case an emergency

hysterectomy was also required,6 (c) the defendants failed


     4 According to the plaintiff's expert, Dr. S. Jason Kapnick,
"[d]isseminated intravascular coagulation is a process that
describes widespread activation of the clotting cascade that
results in the formation of small clots in small blood vessels
throughout the body."

     5   The plaintiff's expert stated that

     "[a]mniotic fluid embolism is a rare but serious
     complication that can occur during labor and delivery. An
     amniotic fluid embolus occurs when amniotic fluid or fetal
     material including hair, nails, fetal cells, and/or vernix
     enters the maternal bloodstream. This occurs during labor
     or immediately after delivery. Symptoms indicating a
     potential amniotic fluid embolism include sudden shortness
     of breath, pulmonary edema, sudden cardiovascular collapse,
     disseminated intravascular coagulation, altered mental
     status, tachycardia, fetal distress, abnormal maternal
     heart rate, seizures, nausea, and/or vomiting. Risk
     factors for amniotic fluid embolus include the following:
     placental problems -- previa or abruption, preeclampsia,
     induction of labor with medications, and a tumultuous
     labor, as in Ms. Feliciano's case."

     6   According to the plaintiff's expert,

     "[a]fter a peri-mortem bedside cesarean section is
     performed in response to a presumed amniotic fluid embolus
                                                                      4


thereafter to sufficiently monitor her and failed to recognize

that her condition necessitated a hysterectomy until after she

again "coded," (d) the defendants waited too long to perform the

emergency hysterectomy, and (e) the defendants performed the

emergency hysterectomy in Feliciano's bed and without proper

medical tools (such as a scalpel) because of the delay in

performing the procedure and because of the earlier failure to

place her in or near an operating room.7   The plaintiff's

expert's opinion is that the defendants' medical treatment fell

below the accepted standard of care and resulted in Feliciano's

injury, suffering, and premature and preventable death.      We set

out additional facts below as they relate to the specific

arguments raised on appeal.




     and ensuing [disseminated intravascular coagulation] is
     anticipated, then the accepted standard of care requires
     the obstetrician and/or maternal fetal medicine physician
     to leave the patient's abdomen open to directly visualize
     and appreciate uterine tone, and move the patient to the
     recovery room nearest to the operating room in the event an
     emergent hysterectomy is required. Additionally, if the
     main source of severe bleeding is from the uterus, as in
     Ms. Feliciano's case, then the standard of care requires
     the average qualified obstetrician and/or maternal fetal
     medicine physician, to order and perform an emergent
     hysterectomy if the bleeding is unable to be controlled to
     save the patient's life."

     7 The plaintiff's expert noted that "[a]s a result of
waiting this long, Dr. Raymond [the surgeon] manually removed
the staples, and the cesarean incision was opened manually as
well due to the lack of necessary tools, including a scalpel,
that were absent in the ICU room."
                                                                      5


     The plaintiff filed this medical malpractice and wrongful

death action against (among others) a number of doctors and

nurses who were involved in Feliciano's treatment at Newton-

Wellesley Hospital.   The plaintiff's offer of proof included the

detailed expert opinion of Dr. S. Jason Kapnick, a licensed

physician board certified in obstetrics and gynecology and

gynecological oncology, together with his curriculum vitae.      It

also included medical records from Newton-Wellesley Hospital,

fetal monitoring strips, an autopsy report from Massachusetts

General Hospital, and Feliciano's death certificate.   After a

hearing, a medical malpractice tribunal found that the evidence

did not raise a legitimate question of liability with respect to

Newton-Wellesley Obstetrics and Gynecology, P.C., and with

respect to two of the individual physicians, Dr. Cara Attanucci

and Dr. Henry Lerner.   After the plaintiff failed to post a bond

with the Superior Court, see G. L. c. 231, § 60B, the claims

against Drs. Attanucci and Lerner, as well as those against

Newton-Wellesley Obstetrics and Gynecology, P.C., were

dismissed, and a separate and final judgment entered pursuant to

Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).   At issue before

us are only the claims against Drs. Attanucci and Lerner.8


     8 The plaintiff did not identify Newton-Wellesley Obstetrics
and Gynecology, P.C., in his notice of appeal, nor does he make
any argument on appeal with respect to the dismissal of the
claim against the professional corporation.
                                                                      6


     A plaintiff's offer of proof shall prevail before a medical

malpractice tribunal (1) if the defendant is a health care

provider as defined in G. L. c. 231, § 60B,9 see Santos v. Kim,

429 Mass. 130, 133-134 (1999),10 "(2) if there is evidence that

the [health care provider's] performance did not conform to good

medical practice, and (3) if damage resulted therefrom," Kapp v.

Ballantine, 380 Mass. 186, 193 (1980).     The tribunal is not to

engage in weighing the evidence or determining credibility,

Keppler v. Tufts, 38 Mass. App. Ct. 587, 589 (1995), and "[a]ny

factual dispute as to the meaning of the record is for the

jury."     Rahilly v. North Adams Regional Hosp., 36 Mass. App. Ct.

714, 723 (1994), quoting Kopycinski, 410 Mass. at 418.




     9    General Laws c. 231, § 60B, provides in relevant part:

     "For the purposes of this section, a provider of health
     care shall mean a person, corporation, facility or
     institution licensed by the commonwealth to provide health
     care or professional services as a physician, hospital,
     clinic or nursing home, dentist, registered or licensed
     nurse, optometrist, podiatrist, chiropractor, physical
     therapist, psychologist, social worker, or acupuncturist,
     or an officer, employee or agent thereof acting in the
     course and scope of his employment."

     10In Santos, 429 Mass. at 132-133, the Supreme Judicial
Court stated that "[§] 60B does not require the existence of a
doctor-patient relationship as a predicate for its application,"
and that "[t]he term doctor-patient relationship," although it
has "become boilerplate[,] . . . is unfortunate." Accordingly,
we do not use the "doctor-patient relationship" formulation of
Kapp v. Ballantine, 380 Mass. 186, 193 (1980). See Saunders v.
Ready, 68 Mass. App. Ct. 403, 404 (2007).
                                                                   7


    The task of the medical malpractice tribunal is a "narrow"

one, in which "the tribunal should simply examine the evidence

proposed to be offered on behalf of the patient to determine

whether that evidence, 'if properly substantiated,'" (citation

omitted), McMahon v. Glixman, 379 Mass. 60, 69 (1979), "is

sufficient to raise a legitimate question of liability

appropriate for judicial inquiry or whether the plaintiff's case

is merely an unfortunate medical result."   G. L. c. 231, § 60B.

"[T]he evidence presented by the offer of proof is viewed by a

standard comparable to a motion for a directed verdict, that is,

in a light most favorable to the plaintiff."   Blake, 412 Mass.

at 484, citing Kopycinski, 410 Mass. at 415, 417-418.    "That

standard is whether '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.'"   Dobos v. Driscoll, 404 Mass. 634, 656, cert.

denied, 493 U.S. 850 (1989), quoting Poirier v. Plymouth, 374

Mass. 206, 212 (1978).

    Although the tribunal's role vis-à-vis the plaintiff's

evidence is comparable to the directed verdict standard in the

sense that the plaintiff's offer of proof is to be viewed in the

light most favorable to the plaintiff, the standards are not

"one and the same."   Kopycinski, 410 Mass. at 415.   It is

important to remember that the tribunal's evaluation of the
                                                                   8


plaintiff's offer of proof occurs at a very different stage of

the litigation than does a judge's evaluation of the evidence on

a motion for directed verdict.   Whereas a motion for directed

verdict comes after discovery has been completed, the

plaintiff's legal claims and theories have been tested through

pretrial dispositive motions, expert opinions have been tested

and vetted through Lanigan motions, see Commonwealth v. Lanigan,

419 Mass. 15, 26 (1994), and the plaintiff's witnesses and

documentary evidence have been admitted and cross-examined at

trial, the offer of proof before the tribunal is made without

the benefit of discovery and at the earliest stage in the life

of the litigation -- even before motions to dismiss.    For this

reason, the statute explicitly contemplates that a plaintiff's

offer of proof to the tribunal need not meet the full

evidentiary burden of proof at trial; instead, the offer of

proof, taken in the light most favorable to the plaintiff, need

only be sufficient to raise a legitimate question of liability,

with proper evidentiary substantiation to follow.   See, e.g.,

McMahon, 379 Mass. at 69.   This principle is directly reflected

in the language of the statute, which highlights that the

evidence in the offer of proof will be the subject of future

substantiation in the course of litigation.   See G. L. c. 231,

§ 60B ("said tribunal shall determine if the evidence presented

if properly substantiated is sufficient to raise a legitimate
                                                                     9


question of liability" [emphasis added]).     Thus, at this stage,

we do not require that the plaintiff's proof be complete, merely

that it be enough to "raise a legitimate question of liability

appropriate for judicial inquiry."    Id.   In short, not all

factual questions need be answered or resolved at this stage.

    Consistent with this, the admission of expert opinion

before the tribunal is not subject to the same strictures as are

required for admission at trial.    Indeed, "[t]he standard for

admission of expert testimony before a medical malpractice

tribunal is an extremely lenient one."      Halley v. Birbiglia, 390

Mass. 540, 543 n.4 (1983).    Heyman v. Knirk, 35 Mass. App. Ct.

946, 947-948 (1993).    "[T]he tribunal may not refuse to accept

an expert's opinion unless the plaintiff's offer of proof is so

deficient that as a matter of law it would be improper for any

judge to admit it."     Nickerson v. Lee, 42 Mass. App. Ct. 106,

111 (1997).   Extrinsic evidence is not required to substantiate

the factual statements in an expert's opinion, and "a factually

based statement by a qualified expert, without more, is

sufficient to meet the tribunal standard" (emphasis added).

Booth v. Silva, 36 Mass. App. Ct. 16, 21 (1994).

    With these legal principles in mind, we turn to examining

the specifics of the offer of proof with respect to Drs.

Attanucci and Lerner.    As to Dr. Attanucci, the offer of proof

sufficiently established that she was a health care provider to
                                                                  10


Feliciano:   Dr. Attanucci assisted in the emergency perimortem

bedside cesarean section.11   See Lambley v. Kameny, 43 Mass. App.

Ct. 277, 283 (1997) ("The essence of the doctor-patient

relationship is the undertaking by a physician to diagnose

and/or treat the person being diagnosed or treated with

reasonable professional skill").   A legitimate question of Dr.

Attanucci's liability was raised by the opinion of the

plaintiff's qualified expert that Dr. Attanucci deviated from

the accepted standard of care when she (along with others)

"failed to leave Ms. Feliciano's abdomen open for close

monitoring and evaluation of uterine bleeding," failed "to keep

Ms. Feliciano in the operating room or in the nearest recovery

unit, so that all necessary tools were readily available in the

event an emergency hysterectomy was required," and, upon

recognition of uterine atony, "failed to perform an emergent

hysterectomy."   Furthermore, Dr. Kapnick opined that these

deviations from the standard of care resulted in harm to




     11The operative report of the emergency cesarean section,
prepared by Dr. Raymond, shows that Dr. Attanucci responded to
the "code blue" and acted as second assistant in the surgery.
The record does not state that the doctor's relationship ended
(or, if so, when), nor does it support the defendants'
contention that Dr. Attanucci acted merely as a de facto "scrub
nurse," which, in any event, is a factual dispute not amenable
to disposition by the tribunal. Contrast St. Germain v.
Pfeifer, 418 Mass. 511, 520 (1994) (where patient transferred
out of doctor's care and there was no evidence of treatment
after that transfer, no doctor-patient relationship existed).
                                                                    11


Feliciano, including her premature and preventable death.

Nothing more was required to raise a legitimate question of

liability with respect to Dr. Attanucci.

    The same is true of Dr. Lerner, who (along with others)

performed a bedside laparotomy and assisted in the emergency

hysterectomy.    He was also present at Feliciano's bedside when

she died.    On these bases, the offer of proof was sufficient to

establish that Dr. Lerner was a provider of health care to

Feliciano.   See Lambley, 43 Mass. App. Ct. at 283-284.    As to

liability, Dr. Kapnick opined that Dr. Lerner (along with

others) "waited far too long in performing an emergency

hysterectomy in the ICU bed."    An opinion of delay such as this

is sufficient as an offer of proof.    See Kopycinski, 410 Mass.

at 418 (element satisfied by expert affidavit alone); Rahilly,

36 Mass. App. Ct. at 722 (allegation of delay sufficient).

Although extrinsic evidence is not necessary to support the

expert's opinion at this stage, we note that such evidence was

present here.    The medical records show that the emergency

hysterectomy was not performed until approximately one hour

after the medical records indicate Dr. Lerner arrived for the

procedure, and that Feliciano's condition necessitated a

hysterectomy by the time Dr. Lerner arrived.    On this basis, a

sufficient question of liability against Dr. Lerner was raised

by the offer of proof.
                                                                   12


     Dr. Kapnick also opined that Dr. Lerner (along with others)

failed to frequently assess Feliciano for active vaginal

bleeding, failed to monitor her in the recovery room, failed to

consult with an interventional radiologist regarding the need

for arterial embolization, and failed to recognize or appreciate

when the massive transfusion protocol failed to reverse her

coagulopathy.12   Given the medical record's silence about when,

precisely, Dr. Lerner's involvement with Feliciano's care began,

we note that it is a closer question with respect to these

additional theories of liability against him.   But, again, these

are matters to be determined after discovery, when the precise

beginning of Dr. Lerner's involvement in Feliciano's care will

be learned.   That factual question should not have been decided

against the plaintiff, without the benefit of discovery, at this

stage.

     The findings of the tribunal as to Dr. Attanucci and Dr.

Lerner are to be replaced by the decision of this court that the

offer of proof of the plaintiff, if properly substantiated, is

sufficient to raise a legitimate question of liability




     12It is true, as the dissent points out, that these same
bases of liability are alleged against many of the other
defendants. But that neither surprises nor concerns us; the
medical record shows that the defendants (at different moments
and in different combinations) were all involved in Feliciano's
care, and that the medical events at issue took place over a
short span of time.
                                                                   2


appropriate for judicial inquiry.   The judgment of dismissal as

to Dr. Attanucci and Dr. Lerner is vacated, and the plaintiff

may proceed with his claims.

                                    So ordered.
     ENGLANDER, J. (dissenting in part).     The question is

whether the plaintiff's offer of proof contained sufficient

evidence to raise a legitimate question of liability with

respect to Drs. Attanucci and Lerner, two of the many doctors

that were involved in the care of the patient, the plaintiff's

decedent.1    G. L. c. 231, § 60B.

     As to Dr. Attanucci, I concur that the offer of proof was

sufficient.    The medical records show that Dr. Attanucci

assisted in the care of the patient during an emergency cesarean

section, which occurred at approximately 2 P.M. on the day in

question.    The expert submission from Dr. Kapnick opines as to

several breaches of the standard of care that occurred during

that operation or during the patient's postoperative care.

Given that Dr. Attanucci assisted with the cesarean section, Dr.

Kapnick's opinions as to Dr. Attanucci's breaches are sufficient

to meet the applicable standard.     See Little v. Rosenthal, 376

Mass. 573, 578 (1978).

     The same is not true for Dr. Lerner, however, and I

respectfully dissent from the majority's conclusion as to him.

The only mention of Dr. Lerner in the medical records is that he

appeared at the patient's bedside at 9:25 P.M., when the patient




     1 The tribunal concluded that there was sufficient evidence
as to several defendants other than Drs. Attanucci and Lerner.
                                                                   2


was already in extremis, and well after the breaches identified

by Dr. Kapnick had already occurred.     There is nothing in the

medical records that shows that Dr. Lerner had any knowledge

prior to 9:25 P.M. of the patient's circumstances on that day,

or of the care she was receiving.    Moreover, there is no

contention in Dr. Kapnick's expert submission that the care

provided after Dr. Lerner arrived at 9:25 P.M. was in any way

deficient.   The failures the expert alleges all occurred many

hours prior to 9:25 P.M.

    The medical malpractice tribunal was established to provide

a screening process for medical malpractice complaints, in order

to "discourage frivolous claims whose defense would tend to

increase premium charges for medical malpractice insurance."

McMahon v. Glixman, 379 Mass. 60, 68 (1979), quoting Austin v.

Boston Univ. Hosp., 372 Mass. 654, 655 n.4 (1977).     The

plaintiff submits an "offer of proof," which is evaluated for

whether it provides sufficient evidence to satisfy a standard

comparable to a "directed verdict" standard.     See Little, 376

Mass. at 577-579; Cooper v. Cooper-Ciccarelli, 77 Mass. App. Ct.

86, 91 (2010).   The standard of proof is not stringent, but it

is not without teeth; the plaintiff must come forward with

evidence "to raise a legitimate question of liability

appropriate for judicial inquiry."     G. L. c. 231, § 60B.
                                                                       3


    The majority concludes that the offer of proof is

sufficient as to Dr. Lerner in part because it articulates a

very relaxed standard of proof.     In particular, the majority

seems to assert that statements made by experts must be accepted

by the tribunal, even if those statements are not supported by

the medical records.     A standard that requires that statements

in expert opinions be accepted, even when not substantiated by

the documentary record, is not consistent with the statutory

scheme or our case law.

    First, the statutory scheme contemplates a screening

process where evidence will be presented, and where that

evidence will be evaluated, to some degree, and not just

accepted.   Thus the statute expressly refers to the submission

of "evidence," and it goes on to define the types of "evidence"

that are "admissible."     G. L. c. 231, § 60B.   It describes means

for the tribunal "to substantiate or clarify any evidence which

has been presented before it."     Id.   This process obtains

despite the absence of discovery.     The statute even references a

standard -- "substantial evidence" -- which "shall mean such

evidence as a reasonable person might accept as adequate to

support a conclusion."     Id.

    Thus, the language and structure of G. L. c. 231, § 60B,

contemplate a role for the tribunal that is evaluative, and that

involves more than the undiscerning acceptance of the assertions
                                                                      4


in an offer of proof.   This more evaluative role has been

reflected in the case law, from very early on.     Thus, in Little,

376 Mass. at 578, the Supreme Judicial Court expressly rejected

the plaintiff's assertion that the tribunal should apply a

standard analogous to that applied to a motion to dismiss.     The

court analyzed the statutory scheme and concluded that "the

tribunal's mandate is to evaluate evidence."     Id.   It stated

that the tribunal's task should be compared "to the trial

judge's function in ruling on a defendant's motion for directed

verdict," and it went on to affirm the tribunal's conclusion

that the offer of proof was insufficient.    Id.   Two years later,

in Kapp v. Ballantine, 380 Mass. 186, 191-193 (1980), the court

applied the standard from Little in concluding that the

plaintiff's offer of proof was sufficient as to some defendants,

but not others.   Relevant here, the court held as to one

defendant, Dr. Levy, that the contention that he was "part of a

consulting team" was insufficient, where the evidence did not

support the contention that Dr. Levy had participated in the

medical care claimed to be deficient.    Id. at 195.

    The decisions of this court have applied this evaluative

standard as well; notably, the standard has been applied to

reject offers of proof even where they are supported by an

expert report.    Thus, in LaFond v. Casey, 43 Mass. App. Ct. 233,

237 (1997), this court affirmed a tribunal's rejection of an
                                                                   5


offer of proof that was supported by an expert opinion; the

opinion stated that doctors had breached the standard of care

during a childbirth, and had thereby subjected the newborn baby

to "prolonged hypoxia."    This court agreed the offer was

nevertheless insufficient, concluding that the expert's opinion

"is based upon an assumption of facts that have no roots in the

evidence."   Id.   And in Cooper, 77 Mass. App. Ct. at 92-93, this

court again rejected an offer of proof because the expert's

opinion was "not rooted in the evidence."    In affirming the

tribunal, we noted that "the deficiency in Dr. Sargent's opinion

is not revealed merely by his lack of specificity in fixing the

defendant's standard of care, but rather because his opinion

lacked any consideration of the defendant's actual conduct in

seeking out the higher expertise of the radiologists with whom

she consulted" (emphasis supplied).    Id. at 93.2


    2  The majority's view of the standard appears to be
influenced by statements in the cases to the effect that the
tribunal should not "determine credibility" or "weigh the
evidence." See, e.g., Blood v. Lea, 403 Mass. 430, 433 n.5
(1988); Kapp, 380 Mass. at 191. But one can agree with those
principles without also concluding that an expert's opinion must
be accepted even where it is inconsistent with, or not supported
by, the medical records. Indeed, the case law contains several
examples where an expert opinion has not been so accepted,
because, as here, the opinion is founded upon facts or
assumptions not supported by other evidence before the tribunal.
The statement the majority cites from Booth v. Silva, 36 Mass.
App. Ct. 16, 21 (1994), accordingly must be understood as
stating only that a factually based statement of an expert can
be sufficient to meet the standard, not that it must be so
accepted. Indeed, in Booth the facts that were challenged in
                                                                    6


     Here, consistent with the standards and case law described

above, the tribunal separately considered the facts as to each

defendant, and concluded that although the offer was sufficient

as to several defendants, it was not sufficient as to Dr.

Lerner.   In my view, that conclusion was correct.   The expert's

submission indiscriminately lumps Dr. Lerner with several of the

other doctors, asserting that Dr. Lerner should have taken

certain steps in connection with events, such as the cesarean

section, that took place several hours before Dr. Lerner arrived

at the patient's bedside.   Thus, the expert asserts, for

example, that Dr. Lerner failed to "monitor Ms. Feliciano in the

recovery room" after the cesarean section, and concludes that he

failed to "promptly perform a hysterectomy" "no later than 4:30

P.M."   But the expert's submission does not offer any basis for

believing that Dr. Lerner had any involvement with the patient's

care at those times.   As to Dr. Lerner the submission is, as the

judge on the tribunal observed, a cut and paste job.    It fails

to show a provider-patient relationship at a relevant time, and

it accordingly fails to present evidence that Dr. Lerner

deviated from the applicable standard of care.   No reasonable




the expert opinion actually were independently found in the
record. Id. at 18-19 & nn.5, 6.
                                                                    7


fact finder could find Dr. Lerner liable, on the facts presented

with the offer of proof.

    The majority rests its contrary conclusion on the expert's

statement that Dr. Lerner (along with others) "waited far too

long in performing an emergent hysterectomy in the ICU bed."

But the expert's more detailed contention was that the

hysterectomy should have been performed "no later than 4:30

P.M." -- a time when there was no evidence that Dr. Lerner was

yet involved.   In such circumstances the expert's assertion that

Dr. Lerner was in breach of the standard of care need not be

accepted, because it is not "rooted in the evidence."    Such is

the kind of evaluation of evidence that is contemplated by the

statute, and confirmed in cases such as Cooper, 77 Mass. App.

Ct. at 93, and LaFond, 43 Mass. App. Ct. at 237.

    Finally, the majority posits that even if Dr. Lerner did

not arrive at the patient's bedside until 9:25 P.M. (as

reflected in the medical records), in any event the hysterectomy

was not performed until one hour later, and this one-hour delay

was itself sufficient to satisfy the standard.   The contention

that liability hinges on a delay from 9:25 P.M. to 10:40 P.M.,

however, is not set forth in Dr. Kapnick's expert opinion, nor

is such an argument made in the plaintiff's brief.   To make an

adequate showing the plaintiff would have to establish that this

one-hour delay could have caused the patient's death, see
                                                                   8


Bradford v. Baystate Med. Center, 415 Mass. 202, 206-208 (1993);

Keppler v. Tufts, 38 Mass. App. Ct. 587, 590-591 (1995), and the

plaintiff has not done so.   Indeed, there is no support in the

record for the contention that any care that was provided after

Dr. Lerner arrived at 9:25 P.M. was causally related to the

patient's death.   The tribunal's conclusion accordingly should

not be overturned on that ground.

    For these reasons, I would vacate the judgment as to Dr.

Attanucci, but affirm it as to Dr. Lerner.
