ELIZABETH OWENS v. ORBELINA ERAZO & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-1204

ELIZABETH OWENS

vs.

ORBELINA ERAZO & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Elizabeth Owens, suffered an injury while

hospitalized after hip surgery. She brought a medical

malpractice action against Orbelina Erazo, R.N., Ron Agustin,

P.C.A., Lauren O'Hara, P.T., and Brigham & Women's Faulkner

Hospital (hospital). Defendants Erazo and O'Hara (collectively,

defendants) subsequently filed requests for a medical

malpractice tribunal. See G. L. c. 231, § 60B. The tribunal

found in favor of the defendants. Owens did not post the

required bond, and a Superior Court judge entered a separate and

final judgment for the defendants pursuant to Mass. R. Civ. P.

54 (b), 365 Mass. 820 (1974). Owens now appeals, claiming that

1 Ron Agustin, Lauren O'Hara, and Brigham & Women's Faulkner
Hospital, Inc.
the medical malpractice tribunal erred in determining that her

injuries were due to an unfortunate medical result. We reverse.

Background. We summarize the facts set forth in the

plaintiff's expert affidavit (and the supporting materials

contained in the offer of proof) in the light most favorable to

her, reserving certain facts for later discussion.2 See Rahilly

v. North Adams Regional Hosp., 36 Mass. App. Ct. 714, 715-717

(1994). Owens sought treatment at the hospital in March of 2019

due to hip pain and underwent hip replacement surgery without

incident on May 8, 2019. The surgery was completed by 12 P.M.

At 3:10 P.M., Owens met with physical therapist O'Hara, who

evaluated Owens's physical limitations and physical therapy

needs. The expert summarized O'Hara's recommendations that

Owens:

"required one-person guard assistance (one or two hands on
the body to help steady the body), a rolling walker, a bed
rail, and verbal cues for hand placement for sit-to-stand
[and] stand-to-sit transfers. [Owens] was assessed with
impaired right hip range of motion, reduced right leg
strength, and pain resulting in 'balance impairments and
gait deviations.' Her functional limitations included
impaired ability to perform sit-to-stand, bed-to-chair, and
supine-to-sit [and] sit to supine transfers, impaired
ambulation, and impaired ability to walk up [and] down
stairs. She was at risk of falls and required anterior hip

2 The offer of proof consisted of Owens's medical records and
reports, affidavits from Owens and her husband, and an expert
affidavit from Georgia Persky, Ph.D., M.B.A., R.N., N.E.A.-B.C.,
C.N.O.R., C.L.N.C., C.N.A.A. The medical records support the
factual summary contained in the expert affidavit. The
defendants challenge the sufficiency of the medical opinion, not
the accuracy of the underlying facts leading up to the fall.

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precautions and gait training. She was weightbearing on
the right leg as tolerated and was allowed to engage in
activity as tolerated."

The note was placed in the patient flow sheets and record

between 5:01 P.M. and 5:10 P.M.

Defendant Erazo also checked on Owens several times that

day, and recorded a Morse Fall Risk score of 35 (low) at 1:29

P.M. and a score of 45 (low) at 4 P.M. She noted that Owens was

using a walker, required minimal assistance, and could engage in

activity as tolerated.

At about 7 P.M., Owens requested assistance in getting out

of bed and going to the bathroom. The nurse on duty called for

the P.C.A. to assist Owens. As Owens got out of bed, she

slipped, fell, and reinjured her right hip. As summarized by

Owens's expert, based on the medical records submitted, the fall

occurred because P.C.A. Agustin:

"unhooked an IV from a port in Ms. Owens's left arm and put
a walker next to her bed. Ms. Owens sat up and began to
pull herself up, holding onto the walker. Mr. Agustin was
not using a guard belt, holding the walker, or touching Ms.
Owens to brace her. As Ms. Owens stood up, her feet
slipped on the wet floor. The floor was wet because the IV
had leaked after being unhooked."

Owens's husband observed liquid on the floor and overheard the

head nurse ask who had unhooked the IV bag. Another nurse

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described the IV as "leaking."3 A thirty-day report submitted by

the hospital to the Department of Public Health described the

injury as "likely preventable."4

Even after the fall, the assessments of Owens's fall risk

varied greatly. P.C.A. Agustin continued to say that Owens

required "minimal assistance" at 8:17 P.M. and 9:13 P.M. on May

8. One nurse made the same notation at 12:17 A.M. on the 9th,

two hours after a different nurse assessed Owens's Morse Fall

Risk as 85 (high). A third rated the risk as 60 (high) at 1:03

A.M. on the 9th.

Owens fractured her hip in the fall and underwent revision

surgery on May 10, 2019. She filed her medical malpractice

complaint in May of 2020. As previously noted, the parties'

dispute at the tribunal focused solely on the liability of Erazo

and O'Hara.

With respect to defendant Erazo, the expert opined that

Erazo was responsible for "for ensuring that Mr. Agustin was not

allowed to manipulate or disconnect any intravenous tubing due

to his lack of adequate qualifications." The expert stated that

Erazo improperly assessed Owens's Morse Fall Risk as low (35-

3 There were also notations in the record that suggested that the
IV bag was leaking before it was disconnected. This factual
dispute is not susceptible to resolution by the tribunal.
4 The hospital did not disclose the condition of the wet floor in

its report sent to the Department of Public Health.

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45), when it should have been high (60 or greater).5 She further

opined that Erazo, as the nurse on duty, was "responsible and

accountable for supervising the co-defendant Ron Agustin,

P.C.A., and reviewing and communicating to him physical therapy

recommendations concerning the requisite level of assistance

with mobility."

With respect to O'Hara, the expert opined that, "as the

physical therapist of record, [she] was responsible and

accountable for managing Ms. Owens's mobility and risk of falls,

which included assessing, communicating to, and coordinating

with her nursing staff the requisite level of assistance with

sit-to-stand transfers."

Similarly, the expert opined that Erazo, O'Hara, the

P.C.A., and the hospital all "failed to properly assess,

properly communicate within Ms. Owens's healthcare team, and

properly manage her risk of falls as evidenced by the fact that

5 The expert considered all of the defendants (including the
P.C.A. and the hospital) culpable for underestimating Owens's
fall risk, stating:

"Ms. Owens was at high risk of falls, with a Morse Fall
Risk score greater than 60, in light of her IV therapy,
postoperative 'balance impairments and gait deviations'
. . . her Oxycodone and other pain medication use for
postoperative pain, her marked decline in function
preoperatively, her secondary diagnoses of bilateral knee
osteoarthritis, interstitial lung disease, and
hypertension, and her prior fall on January 24, 2019."

5
the level of assistance provided by Mr. Agustin at the time of

Ms. Owens's fall . . . fail[ed] to comply with the contact guard

or minimal level of assistance with sit-to-stand transfers

designated as the requisite level of assistance" in O'Hara's

assessment and treatment plan. The expert concluded that the

defendants deviated from the standards of care by failing to

"properly assess Ms. Owens's high risk of falls," failing to

properly communicate within her healthcare team the high risk of

falls, and failing to "properly coordinate within her healthcare

team the proper level of assistance for sit-to stand-transfers."

Discussion. A medical malpractice tribunal is charged with

determining whether the plaintiff's offer of proof "if properly

substantiated 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.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, . . . '(2) if there is evidence that the [health care

provider's] performance did not conform to good medical

6 Under G. L. c. 231, § 60B, "[e]very action for malpractice,
error or mistake against a provider of health care shall be
heard by a tribunal consisting of a single justice of the
superior court, a physician licensed to practice medicine in the
commonwealth . . . and an attorney authorized to practice law in
the commonwealth."

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practice, and (3) if damage resulted therefrom.'" Feliciano v.

Attanucci, 95 Mass. App. Ct. 34, 37 (2019), quoting Kapp v.

Ballantine, 380 Mass. 186, 193 (1980). Here, "[w]e deal . . .

only with the question whether the offer of proof sufficiently

established the existence of 'evidence' that the [two]

defendants did not conform to good medical practice." Booth v.

Silva, 36 Mass. App. Ct. 16, 20 (1994).

The defendants assert that the tribunal decision was

correct because the expert opinion was based on speculation and

conjecture; specifically, that Erazo did not properly assess

risk or communicate with P.C.A. Agustin, and that O'Hara did not

communicate with Agustin. This argument misperceives the

standard of review of the tribunal.

"[T]he plaintiff's offer of proof raises a legitimate

question of liability appropriate for judicial inquiry 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.'"

St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994), quoting Dobos

v. Driscoll, 404 Mass. 634, 656, cert. denied 493 U.S. 850

(1989). See Lambley v. Kameny, 43 Mass. App. Ct. 277, 286

(1997). "[A]n offer of proof is to be given an indulgent

reading in favor of the plaintiff. . . . [T]he standard for

considering expert testimony is an extremely lenient one, and

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. . . the evidence, including all permissible inferences

therefrom, is to be taken in the light most favorable to the

plaintiff" (quotations and citations omitted). Id.7

Given this "lenient" standard of proof at the tribunal

stage, the defendants' call for greater specificity is

misplaced. "[T]he offer of proof before the tribunal is made

without the benefit of discovery," and it therefore "need only

be sufficient to raise a legitimate question of liability, with

proper evidentiary substantiation to follow." Feliciano, 95

Mass. App. Ct. at 38. The level and substance of communication

within Owens's health care team is in the hands of the

defendants; Owens cannot be faulted for failing to produce it.

Moreover, the evidence before the tribunal indicated

varying and disparate views of Owens's fall risk, even after her

fall, suggesting (as the expert opined) a lack of coordination

and consistency. The medical records disclose that she was

using a wheelchair before her surgery and had other medical

conditions. It is a fair inference, viewing the proffer in the

7 The defendants also assert that the expert opinion fails to
identify the professional standards upon which it is based. We
read the expert affidavit to imply a standard of care. While
the defendants' objections may or may not be an appropriate
basis for a pretrial challenge to (or cross examination of) the
expert in discovery, at the tribunal stage "a factually based
statement by a qualified expert, without more, is sufficient to
meet the tribunal standard." Feliciano, 95 Mass. App. Ct. at
39, quoting Booth, 36 Mass. App. Ct. at 21.

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light most favorable to Owens, that one or more professionals

underestimated the fall risk, or failed to communicate the fall

risk to others, most particularly the P.C.A. It is an equally

permissible inference that there was a lack of consistency and

communication regarding O'Hara's recommendations regarding

transfers. The P.C.A. left Owens physically unattended,

contrary to O'Hara's directives. While the evidence after

discovery may or may not paint a different picture, for purposes

of the tribunal, this chain of events, coupled with the expert's

opinion, viewed in the light most favorable to the plaintiff,

was "sufficient to raise a legitimate question of liability,

with proper evidentiary substantiation to follow." Feliciano,

95 Mass. App. Ct. at 38. It is not for the tribunal to "examine

the weight or credibility of the evidence," Cooper v. Cooper-

Ciccarelli, 77 Mass. App. Ct. 86, 91 (2010).

Conclusion. The findings of the tribunal 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 appropriate for

judicial inquiry. The judgment of dismissal as to the

9
defendants Erazo and O'Hara is vacated, and the plaintiff may

proceed with her claims.

So ordered.

By the Court (Green, C.J.,
Wolohojian &
Sullivan, JJ.8),

Clerk

Entered: June 2, 2023.

8 The panelists are listed in order of seniority.

10