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-733
WILLIAM SNYDER
vs.
MASSACHUSETTS GENERAL HOSPITAL & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff brought medical malpractice claims in the
Superior Court against three physicians and Massachusetts
General Hospital (MGH).2 A medical malpractice tribunal
concluded, based on the plaintiff's offer of proof, that the
plaintiff's injuries were "merely an unfortunate medical result"
and were not "sufficient to raise a legitimate question of
liability appropriate for judicial inquiry." The Superior Court
1 Darshali A. Vyas, Jose C. Florez, and Allen P. Heeger.
2The plaintiff's complaint alleges that the three physicians were medically negligent and that MGH was "vicariously liable . . . as the employer of the other defendants and of hospital staff who were acting within the scope of their agency." judge dismissed the claims after the plaintiff failed to post
the statutory bond, and the plaintiff now appeals.3 We affirm.
Background. The plaintiff filed this suit in 2023, based
on injuries he suffered in a fall at MGH after radiologist Allen
P. Heeger, D.O., ordered that two nitroglycerin patches be
administered to him. As relevant to this appeal, the plaintiff
alleged that Heeger was negligent in failing to notify him and
the nurses caring for him that the patches created a risk that
the plaintiff "would be susceptible to syncope upon rising from
his hospital bed."4
A medical malpractice tribunal convened in February 2025,
and the plaintiff submitted an offer of proof consisting of a
brief and several exhibits: copies of the plaintiff's medical
records; letters between the plaintiff and Jana B. Deen, R.N.,
J.D., associate chief and patient safety officer at MGH (Deen)
about MGH's investigation into the incident, including attached
reports prepared by MGH for the Department of Public Health; an
3 The docket reflects that the plaintiff voluntarily dismissed his claims against physicians Darshali A. Vyas and Jose C. Florez before the tribunal hearing took place. The plaintiff has not made any argument on appeal regarding either Vyas or Florez, and neither Vyas nor Florez filed a brief in this appeal.
4 As we have noted, the plaintiff also alleged that MGH was vicariously responsible for Heeger's negligence.
2 information sheet for the nitroglycerin patches administered to
the plaintiff; excerpts from Heeger's responses to the
plaintiff's requests for admissions; guidelines for prevention
of falls; photographs of the plaintiff's hospital room and
injury; and the plaintiff's affidavit. Notably, it did not
include any letter or report from a medical expert to establish
the standard of care or to opine that any of the defendants
deviated from the applicable standard of care in their treatment
of the plaintiff.
The tribunal ultimately concluded that the plaintiff's
offer of proof did not present evidence "sufficient to raise a
legitimate question of liability appropriate for judicial
inquiry" as to either Heeger or MGH. When the plaintiff failed
to post the statutory bond of $6,000 necessitated by the
tribunal's ruling, see G. L. c. 231, § 60B, the Superior Court
judge dismissed the plaintiff's case. This appeal followed.
Discussion. The plaintiff in a medical malpractice action
must present the medical malpractice tribunal with an offer of
proof "sufficient to raise a legitimate question of liability
appropriate for judicial inquiry." G. L. c. 231, § 60B. A
plaintiff's offer of proof meets this standard if it "presents
sufficient evidence that (1) the defendant is a health care
provider as defined in § 60B; (2) the defendant's performance
3 did not conform to good medical practice; and (3) damage
resulted therefrom" (quotations and citations omitted). Bennett
v. Collins, 496 Mass. 737, 742 (2025). When we assess the
evidence presented by an offer of proof, we apply "a standard
comparable to a motion for a directed verdict," and view the
evidence in the light most favorable to the plaintiff. Id.
Notwithstanding the favorable standard of review, we
conclude that the plaintiff failed to make the required showing
before the tribunal. This is primarily because the plaintiff's
offer of proof failed to establish that the defendants'
performance "did not conform to good medical practice."
Bennett, 496 Mass. at 742, quoting Kapp v. Ballantine, 380 Mass.
186, 193 (1980). In the medical malpractice context, "[t]he
relevant standard of care is the one that applies to 'the
average qualified physician in his or her area of specialty,'"
Goudreault v. Nine, 87 Mass. App. Ct. 304, 308 n.9 (2015),
quoting Medina v. Hochberg, 465 Mass. 102, 106 (2013). "This
question can generally only be answered with the aid of expert
opinion." Goudreault, supra. That is the case here.
In his brief to the tribunal, the plaintiff "decided to
rely on MGH's own expert investigation" and on information about
the nitroglycerin patches, rather than employing an expert
witness. We assume without deciding that (1) the letters from
4 Deen to the plaintiff and (2) the reports prepared by an MGH
"compliance specialist" for presentation to the Department of
Public Health were admissible at the tribunal hearing. But see
G. L. c. 12C, § 15 (e). The record does not establish that
either Deen, as the author of the letters to the plaintiff, or
the compliance specialist who prepared MGH's mandatory report of
the plaintiff's fall as a "Serious Reportable Event" had
"sufficient 'education, training, experience and familiarity'
with" the "proper standard of care" to define that standard or
to opine on whether the defendants deviated from it. See
Palandjian v. Foster, 446 Mass. 100, 106 (2006), quoting Letch
v. Daniels, 401 Mass. 65, 68 (1987).
Moreover, neither Deen nor the compliance officer provided
an opinion on the standard of care or whether the defendants
adhered to it. Neither Deen's statement that MGH had been given
"the opportunity to review and improve" its practices after
investigating the plaintiff's fall nor the compliance officer's
statement in the final report that "[w]e believe [the
plaintiff's fall and injury] was likely preventable" was
evidence that the care provided to the plaintiff was
substandard. It does not necessarily follow that a
"preventable" injury was the result of negligence. See Paiva v.
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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-733
WILLIAM SNYDER
vs.
MASSACHUSETTS GENERAL HOSPITAL & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff brought medical malpractice claims in the
Superior Court against three physicians and Massachusetts
General Hospital (MGH).2 A medical malpractice tribunal
concluded, based on the plaintiff's offer of proof, that the
plaintiff's injuries were "merely an unfortunate medical result"
and were not "sufficient to raise a legitimate question of
liability appropriate for judicial inquiry." The Superior Court
1 Darshali A. Vyas, Jose C. Florez, and Allen P. Heeger.
2The plaintiff's complaint alleges that the three physicians were medically negligent and that MGH was "vicariously liable . . . as the employer of the other defendants and of hospital staff who were acting within the scope of their agency." judge dismissed the claims after the plaintiff failed to post
the statutory bond, and the plaintiff now appeals.3 We affirm.
Background. The plaintiff filed this suit in 2023, based
on injuries he suffered in a fall at MGH after radiologist Allen
P. Heeger, D.O., ordered that two nitroglycerin patches be
administered to him. As relevant to this appeal, the plaintiff
alleged that Heeger was negligent in failing to notify him and
the nurses caring for him that the patches created a risk that
the plaintiff "would be susceptible to syncope upon rising from
his hospital bed."4
A medical malpractice tribunal convened in February 2025,
and the plaintiff submitted an offer of proof consisting of a
brief and several exhibits: copies of the plaintiff's medical
records; letters between the plaintiff and Jana B. Deen, R.N.,
J.D., associate chief and patient safety officer at MGH (Deen)
about MGH's investigation into the incident, including attached
reports prepared by MGH for the Department of Public Health; an
3 The docket reflects that the plaintiff voluntarily dismissed his claims against physicians Darshali A. Vyas and Jose C. Florez before the tribunal hearing took place. The plaintiff has not made any argument on appeal regarding either Vyas or Florez, and neither Vyas nor Florez filed a brief in this appeal.
4 As we have noted, the plaintiff also alleged that MGH was vicariously responsible for Heeger's negligence.
2 information sheet for the nitroglycerin patches administered to
the plaintiff; excerpts from Heeger's responses to the
plaintiff's requests for admissions; guidelines for prevention
of falls; photographs of the plaintiff's hospital room and
injury; and the plaintiff's affidavit. Notably, it did not
include any letter or report from a medical expert to establish
the standard of care or to opine that any of the defendants
deviated from the applicable standard of care in their treatment
of the plaintiff.
The tribunal ultimately concluded that the plaintiff's
offer of proof did not present evidence "sufficient to raise a
legitimate question of liability appropriate for judicial
inquiry" as to either Heeger or MGH. When the plaintiff failed
to post the statutory bond of $6,000 necessitated by the
tribunal's ruling, see G. L. c. 231, § 60B, the Superior Court
judge dismissed the plaintiff's case. This appeal followed.
Discussion. The plaintiff in a medical malpractice action
must present the medical malpractice tribunal with an offer of
proof "sufficient to raise a legitimate question of liability
appropriate for judicial inquiry." G. L. c. 231, § 60B. A
plaintiff's offer of proof meets this standard if it "presents
sufficient evidence that (1) the defendant is a health care
provider as defined in § 60B; (2) the defendant's performance
3 did not conform to good medical practice; and (3) damage
resulted therefrom" (quotations and citations omitted). Bennett
v. Collins, 496 Mass. 737, 742 (2025). When we assess the
evidence presented by an offer of proof, we apply "a standard
comparable to a motion for a directed verdict," and view the
evidence in the light most favorable to the plaintiff. Id.
Notwithstanding the favorable standard of review, we
conclude that the plaintiff failed to make the required showing
before the tribunal. This is primarily because the plaintiff's
offer of proof failed to establish that the defendants'
performance "did not conform to good medical practice."
Bennett, 496 Mass. at 742, quoting Kapp v. Ballantine, 380 Mass.
186, 193 (1980). In the medical malpractice context, "[t]he
relevant standard of care is the one that applies to 'the
average qualified physician in his or her area of specialty,'"
Goudreault v. Nine, 87 Mass. App. Ct. 304, 308 n.9 (2015),
quoting Medina v. Hochberg, 465 Mass. 102, 106 (2013). "This
question can generally only be answered with the aid of expert
opinion." Goudreault, supra. That is the case here.
In his brief to the tribunal, the plaintiff "decided to
rely on MGH's own expert investigation" and on information about
the nitroglycerin patches, rather than employing an expert
witness. We assume without deciding that (1) the letters from
4 Deen to the plaintiff and (2) the reports prepared by an MGH
"compliance specialist" for presentation to the Department of
Public Health were admissible at the tribunal hearing. But see
G. L. c. 12C, § 15 (e). The record does not establish that
either Deen, as the author of the letters to the plaintiff, or
the compliance specialist who prepared MGH's mandatory report of
the plaintiff's fall as a "Serious Reportable Event" had
"sufficient 'education, training, experience and familiarity'
with" the "proper standard of care" to define that standard or
to opine on whether the defendants deviated from it. See
Palandjian v. Foster, 446 Mass. 100, 106 (2006), quoting Letch
v. Daniels, 401 Mass. 65, 68 (1987).
Moreover, neither Deen nor the compliance officer provided
an opinion on the standard of care or whether the defendants
adhered to it. Neither Deen's statement that MGH had been given
"the opportunity to review and improve" its practices after
investigating the plaintiff's fall nor the compliance officer's
statement in the final report that "[w]e believe [the
plaintiff's fall and injury] was likely preventable" was
evidence that the care provided to the plaintiff was
substandard. It does not necessarily follow that a
"preventable" injury was the result of negligence. See Paiva v.
Kaplan, 99 Mass. App. Ct. 645, 649 (2021), quoting Palandjian,
5 446 Mass. at 105 ("As the basis for the standard of care rests
on the average qualified physician, or specialist, 'this
standard does not require physicians to provide the best care
possible'"). Cf. Bradford v. Baystate Med. Ctr., 415 Mass. 202,
207 (1993) (where plaintiff's expert report did not state that
defendant failed to adhere to accepted medical practice,
expert's statement implying that negative outcome may have been
avoidable was insufficient to meet standard applicable to
medical malpractice tribunal).
This is not one of the "exceptional cases" in which a lay
person could rely on "common knowledge and experience" to
identify the standard of care and determine whether the
defendants deviated from it. Haggerty v. McCarthy, 344 Mass.
136, 139 (1962), quoting Bouffard v. Canby, 292 Mass. 305, 309
(1935). Whether the standard of care required the average
qualified radiologist to provide additional fall warnings to the
plaintiff or the nurses caring for him after ordering the
application of two nitroglycerin patches is not within the
knowledge of an average lay person. Indeed, the plaintiff's
complaint and offer of proof made this point by highlighting
that a number of factors, related to his situation and the
particular medication administered, increased the likelihood
6 that the medication led to the dizziness that caused him to fall
and injure his hand.
The decision in Polonsky v. Union Hosp., 11 Mass. App. Ct.
622 (1981), cited in the plaintiff's brief, does not require a
different result. In that case, a nurse caring for an eighty
year old patient administered a medication whose manufacturer
warned it could cause "[d]izziness, drowsiness, lightheadedness,
staggering, atoxia, and falling . . . , particularly in elderly
or debilitated persons," but the nurse failed to comply with a
"hospital regulation" requiring side rails to be raised "at all
times" for "confused or disoriented patients," and this court
held that the hospital regulation constituted "an expert opinion
concerning the necessity for raising bed rails" in those
circumstances. Id. at 623, 625. Here, the defendant was
already subject to fall protection measures when the medication
was administered, and there was no evidence that any of his
caregivers failed to adhere to any "hospital regulation" in
place at the time of the fall that might have protected against
his injury.5
5 The plaintiff's offer of proof did not include "[t]he MGH rules before and after [the plaintiff's] injury regarding pre- exam drug administration and fall safety." Even if MGH had changed its regulations in response to the plaintiff's fall, those subsequent remedial measures could not be used to prove negligence. See Martel v. Massachusetts Bay Transp. Auth., 403 Mass. 1, 4-5 (1988); Mass. G. Evid. § 407(a) (2026). Similarly,
7 Because the plaintiff's offer of proof lacked an expert
opinion identifying the applicable standard of care and "how
each defendant 'failed to adhere to [it],'" the offer of proof
"[fell] short of raising a legitimate question of liability
appropriate for judicial inquiry as to each defendant. The
plaintiff's offer of proof accordingly was insufficient." See
DosSantos v. Beth Israel Deaconess Hosp.-Milton, Inc., 497 Mass.
34, 44–45 (2026), quoting Bradford, 415 Mass. at 206.
Accordingly, we affirm the tribunal's finding and the judgment
of dismissal.
Judgment affirmed.
By the Court (Henry, Hand & Allen, JJ.6),
Clerk
Entered: April 21, 2026.
the plaintiff has failed to persuade us that MGH's decision not to charge the plaintiff for services related to the fall and injury was an admission of responsibility that could be used to prove liability. See Gallo v. Veliskakis, 357 Mass. 602, 606 (1970); Mass. G. Evid. § 409(b) (2026).
6 The panelists are listed in order of seniority.