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
25-P-664
WENDY MENDOZA-RIVERA 1 & others 2
vs.
DOUGLAS A. ROMNEY & others. 3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns claims arising from the death of Barry
N. Mendoza (decedent) on April 13, 2020, at St. Luke's Hospital
in New Bedford, following a fall he sustained at the hospital
the previous day. The plaintiffs, Wendy Mendoza-Rivera, her two
sisters (all daughters of the decedent), and the decedent's
wife, appeal from the dismissal of their complaint for failing
1Individually and as personal representative of the estate of Barry Mendoza.
2 Marie V. Mendoza, Cheryl A. Arruda, and Mercedes Prohaska.
3Tomasz Pajak, Nnamdi Amaechina, Michael Barretti, Amy M. Bracken, Brooke A. Taylor, Casey Parker, Tatyana M. Mosby, Julia G. Pires, Cheryl A. Ellis, Joanne Magpayo, Talia Reis, Lesly Wood, Jane Doe, John Doe, and Southcoast Hospitals Group. to post a bond after an adverse decision of a medical
malpractice tribunal. See G. L. c. 231, § 60B. The plaintiffs
claim that the medical malpractice tribunal erred in determining
that the offer of proof was insufficient and that the decedent's
injuries were due to an unfortunate medical result. We affirm.
Background. 1. Prior proceedings. The plaintiffs
commenced this action against the health care system that
operates St. Luke's Hospital (Southcoast), five physicians and
eleven nurses, contending that the defendants deviated from the
standard of care by failing to take appropriate steps to prevent
the decedent from falling. Pursuant to G. L. c. 231, § 60B, the
Superior Court convened a medical malpractice tribunal. Prior
to the hearing, the plaintiffs submitted their offer of proof,
consisting of the decedent's medical records and an opinion
letter from Dr. Richard M. Dupee, a qualified expert physician. 4
The tribunal found that the plaintiffs' offer was not
sufficient as to each defendant, and that the decedent's death
was "merely an unfortunate medical result." When the plaintiffs
failed to post the required bond, a judge of the Superior Court
dismissed the complaint. This appeal followed.
2. The allegations. "We summarize the evidence in the
[plaintiffs'] offer of proof in the light most favorable to the
4 Dr. Dupee had been a licensed medical doctor for over fifty years and was board certified in internal medicine.
2 plaintiff[s]." DosSantos v. Beth Israel Deaconess Hosp.-Milton,
Inc., 497 Mass. 34, 35 (2026), quoting Bennett v. Collins, 496
Mass. 737, 738 (2025).
On April 10, 2020, the decedent was admitted to the
intensive care unit (ICU) of St. Luke's Hospital after
complaining of a cough and shortness of breath. At the time of
his admittance, the decedent was seventy-five years old and
diagnosed with a number of serious health conditions. He was
categorized as a fall risk in the ICU and safety measures were
put in place.
On April 12, 2020, the decedent was transferred to a
general medical unit of St. Luke's Hospital. Staff in that unit
continued to observe the fall risk safety measures implemented
in the ICU. Around 6:55 P.M. that evening, nurses in the unit
heard a loud thump, and the decedent was seen falling to the
ground in the hallway directly outside of his room. A computed
tomography (CT) scan revealed hemorrhages in the decedent's
brain. The decedent's health proxy had signed a "do not
resuscitate" (DNR) instruction on his admittance and maintained
those instructions after consulting with a neurosurgeon. At
1:25 A.M. the next day, the decedent was pronounced dead.
During the entirety of the decedent's stay at St. Luke's
Hospital, at least three physicians and ten nurses attended to
him; some of these medical professionals encountered him in the
3 ICU and others in the general medical unit. The essence of the
plaintiffs' complaint was that the doctors and nurses who cared
for the decedent departed from the standard of care by failing
to monitor his risk of falling; failing to ensure that the alarm
on the bed was functional; and failing to use a device referred
to as a TeleSitter, a remote observation system that uses video
monitoring to watch a patient designated as a fall risk. The
theory of liability against the hospital was respondeat
superior.
3. The expert opinion. As part of the offer of proof
against all the defendants, the plaintiffs presented the
decedent's medical records and an expert opinion report of Dr.
Dupee. Dr. Dupee opined that the defendants, whom he
collectively referred to as "Southcoast Health" had "failed to
recognize and provide care consistent with its own assessments
and failed to recognize, despite their own assessments, that
[the decedent] was a high risk for falling with injury if he was
not provided with adequate surveillance." Dr. Dupee further
opined that the decedent's fall was preventable as he should
have been more closely monitored and should have had a
TeleSitter in place. Dr. Dupee asserted that the "standard of
care required the Defendants to exercise the degree of care and
skill of the average qualified healthcare provider practicing in
their respective specialties, taking into account the advances
4 in the profession and the resources available to them."
Finally, Dr. Dupee concluded that
"Southcoast Health should have provided care to avoid breaches in provision of reasonable care, but chose instead to breach such standards, and as a result, [the decedent] was caused to suffer a head injury resulting in severe anxiety, loss of function, loss of dignity, loss of quality of life, and an untimely death."
4. Discussion. When a medical malpractice action is
brought against a health care provider, a plaintiff is required
to "present an offer of proof to 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.'" DosSantos,
497 Mass. at 44, quoting G. L. c. 231, § 60B. 5 The tribunal has
the "narrow task" of determining whether the offer of proof "is
sufficient to raise a legitimate question of liability
appropriate for judicial inquiry" (citations omitted).
DosSantos, supra. A plaintiff's offer of proof must establish
that (1) the defendant meets the definition of a "health care
provider" provided in § 60B, (2) the defendant's performance did
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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
25-P-664
WENDY MENDOZA-RIVERA 1 & others 2
vs.
DOUGLAS A. ROMNEY & others. 3
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case concerns claims arising from the death of Barry
N. Mendoza (decedent) on April 13, 2020, at St. Luke's Hospital
in New Bedford, following a fall he sustained at the hospital
the previous day. The plaintiffs, Wendy Mendoza-Rivera, her two
sisters (all daughters of the decedent), and the decedent's
wife, appeal from the dismissal of their complaint for failing
1Individually and as personal representative of the estate of Barry Mendoza.
2 Marie V. Mendoza, Cheryl A. Arruda, and Mercedes Prohaska.
3Tomasz Pajak, Nnamdi Amaechina, Michael Barretti, Amy M. Bracken, Brooke A. Taylor, Casey Parker, Tatyana M. Mosby, Julia G. Pires, Cheryl A. Ellis, Joanne Magpayo, Talia Reis, Lesly Wood, Jane Doe, John Doe, and Southcoast Hospitals Group. to post a bond after an adverse decision of a medical
malpractice tribunal. See G. L. c. 231, § 60B. The plaintiffs
claim that the medical malpractice tribunal erred in determining
that the offer of proof was insufficient and that the decedent's
injuries were due to an unfortunate medical result. We affirm.
Background. 1. Prior proceedings. The plaintiffs
commenced this action against the health care system that
operates St. Luke's Hospital (Southcoast), five physicians and
eleven nurses, contending that the defendants deviated from the
standard of care by failing to take appropriate steps to prevent
the decedent from falling. Pursuant to G. L. c. 231, § 60B, the
Superior Court convened a medical malpractice tribunal. Prior
to the hearing, the plaintiffs submitted their offer of proof,
consisting of the decedent's medical records and an opinion
letter from Dr. Richard M. Dupee, a qualified expert physician. 4
The tribunal found that the plaintiffs' offer was not
sufficient as to each defendant, and that the decedent's death
was "merely an unfortunate medical result." When the plaintiffs
failed to post the required bond, a judge of the Superior Court
dismissed the complaint. This appeal followed.
2. The allegations. "We summarize the evidence in the
[plaintiffs'] offer of proof in the light most favorable to the
4 Dr. Dupee had been a licensed medical doctor for over fifty years and was board certified in internal medicine.
2 plaintiff[s]." DosSantos v. Beth Israel Deaconess Hosp.-Milton,
Inc., 497 Mass. 34, 35 (2026), quoting Bennett v. Collins, 496
Mass. 737, 738 (2025).
On April 10, 2020, the decedent was admitted to the
intensive care unit (ICU) of St. Luke's Hospital after
complaining of a cough and shortness of breath. At the time of
his admittance, the decedent was seventy-five years old and
diagnosed with a number of serious health conditions. He was
categorized as a fall risk in the ICU and safety measures were
put in place.
On April 12, 2020, the decedent was transferred to a
general medical unit of St. Luke's Hospital. Staff in that unit
continued to observe the fall risk safety measures implemented
in the ICU. Around 6:55 P.M. that evening, nurses in the unit
heard a loud thump, and the decedent was seen falling to the
ground in the hallway directly outside of his room. A computed
tomography (CT) scan revealed hemorrhages in the decedent's
brain. The decedent's health proxy had signed a "do not
resuscitate" (DNR) instruction on his admittance and maintained
those instructions after consulting with a neurosurgeon. At
1:25 A.M. the next day, the decedent was pronounced dead.
During the entirety of the decedent's stay at St. Luke's
Hospital, at least three physicians and ten nurses attended to
him; some of these medical professionals encountered him in the
3 ICU and others in the general medical unit. The essence of the
plaintiffs' complaint was that the doctors and nurses who cared
for the decedent departed from the standard of care by failing
to monitor his risk of falling; failing to ensure that the alarm
on the bed was functional; and failing to use a device referred
to as a TeleSitter, a remote observation system that uses video
monitoring to watch a patient designated as a fall risk. The
theory of liability against the hospital was respondeat
superior.
3. The expert opinion. As part of the offer of proof
against all the defendants, the plaintiffs presented the
decedent's medical records and an expert opinion report of Dr.
Dupee. Dr. Dupee opined that the defendants, whom he
collectively referred to as "Southcoast Health" had "failed to
recognize and provide care consistent with its own assessments
and failed to recognize, despite their own assessments, that
[the decedent] was a high risk for falling with injury if he was
not provided with adequate surveillance." Dr. Dupee further
opined that the decedent's fall was preventable as he should
have been more closely monitored and should have had a
TeleSitter in place. Dr. Dupee asserted that the "standard of
care required the Defendants to exercise the degree of care and
skill of the average qualified healthcare provider practicing in
their respective specialties, taking into account the advances
4 in the profession and the resources available to them."
Finally, Dr. Dupee concluded that
"Southcoast Health should have provided care to avoid breaches in provision of reasonable care, but chose instead to breach such standards, and as a result, [the decedent] was caused to suffer a head injury resulting in severe anxiety, loss of function, loss of dignity, loss of quality of life, and an untimely death."
4. Discussion. When a medical malpractice action is
brought against a health care provider, a plaintiff is required
to "present an offer of proof to 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.'" DosSantos,
497 Mass. at 44, quoting G. L. c. 231, § 60B. 5 The tribunal has
the "narrow task" of determining whether the offer of proof "is
sufficient to raise a legitimate question of liability
appropriate for judicial inquiry" (citations omitted).
DosSantos, supra. A plaintiff's offer of proof must establish
that (1) the defendant meets the definition of a "health care
provider" provided in § 60B, (2) the defendant's performance did
not conform to good medical practice, and (3) damage resulted.
5 The Legislature enacted the tribunal screening procedure and bond under G. L. c. 231, § 60B, to "discourage frivolous medical malpractice claims" (citation omitted). Bennett, 496 Mass. at 742. See LaFond v. Casey, 43 Mass. App. Ct. 233, 236 (1997).
5 Bennett, 496 Mass. at 742. Because the medical malpractice
tribunal occurs in the early stages of litigation, without the
benefit of discovery, the evidence presented in the offer of
proof must be viewed in the light most favorable to the
plaintiff. DosSantos, supra.
"The statute specifies a wide range of possible sources of
admissible evidence to determine whether the defendant[s] failed
to conform to good medical practice. However, the critical
allegations are usually set forth in an opinion letter
describing a 'failure to conform to good medical practice'"
(footnote omitted). Nickerson v. Lee, 42 Mass. App. Ct. 106,
109 (1997), quoting Gugino v. Harvard Community Health Plan, 380
Mass. 464, 468 (1980). An acceptable offer of proof must
contain more than mere conclusory allegations or statements of
counsel. Booth v. Silva, 36 Mass. App. Ct. 16, 20 (1994). 6
For several reasons, the plaintiffs' offer of proof was
insufficient to prevail at the medical malpractice tribunal
stage. As noted above, the plaintiffs filed suit against the
hospital, a named internist, two named hospitalists, and ten
named nurses working in the ICU and the general surgery floor.
Despite each defendant's distinct role and responsibility to
6 If the tribunal finds for the defendant, the plaintiff's claim will be dismissed unless a bond is posted. Bennett, 496 Mass. at 741.
6 provide medical care to the decedent, Dr. Dupee's opinion letter
fails to identify the standard of care for any single defendant.
In fact, in the discussion portion of his opinion, Dr. Dupee
does not mention any specific defendant by name. Rather, when
expressing his opinion, Dr. Dupee refers to all defendants
simply as "Southcoast Health" or "the Defendants."
The plaintiffs' assertion that the tribunal should not have
treated each defendant independently is contrary to our case
law. To proceed against the defendants, the plaintiffs needed
to submit a sufficient offer of proof as to each of them. Each
health care professional "is held to the standard of care and
skill of the average member of the medical profession practicing
his specialty at the time of the alleged negligence" (quotation,
citation, and emphasis omitted). Palandjian v. Foster, 446
Mass. 100, 112 (2006). Here the offer of proof was lacking.
For instance, the Dupee opinion letter does not establish the
standard of care for a hospitalist treating the decedent in the
ICU (where the defendant did not fall) or the standard of care
for a nurse tasked with caring for the decedent on the general
medical floor. Neither does the Dupee opinion letter provide
any evidence as to which defendants were responsible for
monitoring the decedent, ordering a TeleSitter, or verifying the
functioning of the installed bed alarm.
7 While the Dupee letter does state that the "Southcoast"
defendants breached the standard of care, it describes neither
the specific actions (or inactions) of each defendant nor the
facts that support Dr. Dupee's opinion that an individual
defendant deviated from the applicable standard of care. The
plaintiffs concede this but insist that, because the medical
malpractice tribunal occurs before discovery has begun, they
were not required to provide this information. We are not
persuaded.
Recently, in DosSantos, 497 Mass. at 45, the Supreme
Judicial Court held that a plaintiff's offer of proof was
insufficient because it failed to specifically name the
defendants or their professions, failed to articulate the
standard of care for each of the defendants in their respective
professions, and failed to specify the role each defendant had
in that plaintiff's medical care. Here, the plaintiffs' offer
of proof suffers from the same infirmities as the offer of proof
in DosSantos, supra. Without such information, we are unable to
discern how each individual defendant "'failed to adhere to the
standard of care and skill of the average member of the
profession' practicing in his or her specialty." Id., quoting
Bradford v. Baystate Med. Ctr., 415 Mass. 202, 206 (1993). We
agree with the conclusion reached by the tribunal that the
plaintiffs' offer of proof was insufficient to raise a
8 legitimate question of liability appropriate for judicial
inquiry. Accordingly, the complaint was properly dismissed. 7
Judgment affirmed.
By the Court (Shin, Walsh & Allen, JJ. 8),
Clerk
Entered: March 25, 2026.
7 The defendants also argue that the plaintiffs improperly relied on materials that were privileged and struck from the record. Having determined that the plaintiffs' offer of proof was insufficient, we need not address this argument.
8 The panelists are listed in order of seniority.