-: SJC-13643, Lorraine Belmar personal representative
versus Robert Moore and another.
Attorney Bierhans?
-: Good morning, Justices.
May it please the court, Bruce Bierhans
for the appellant, Lorraine Belmar.
Respectfully, the issue
before the court this morning is whether
or not the 2022 Moran decision from the appeals court bars
recovery under the statute of repose,
where the plaintiff has in fact proven duty, breach,
and causation within the statute of repose,
and this is interpreting MGL chapter 260, section four.
We assert that the statute
and the case law does not bar recovery,
and that we have convincingly established duty, breach,
and causation, and that the harsh result discussed
in our cases is not warranted in this case.
-: So I'm trying to find out what happened below
as far as the factual allegations,
and in particular, I'm going through the expert disclosures.
Atty. Bierhans: Correct.
-: And as I read it, it's all hinged
on the December 8th, 2006 EKG abnormal results,
attendant to hypertension.
Other than the sequence of 10 years of caring for him,
where do we get,
because it can't be continuing treatment,
so where do we get a cause of action that is different from,
or is extended from the December 8th, 2006 event?
-: We don't believe, Judge,
that this is a continuing treatment case
or that the continuing treatment doctrine is applicable
to the treatment in this particular case.
Our position is
that while the 2006 abnormal EKG is an event,
it is not an event that bars recovery under the statute,
because there was continuing treatment,
but our position is that each visit
of the 13 visits over a 10 year period that did not,
or failed to address the multiple constellation
of symptoms in this case,
each of those treatments constituted a distinct
and separate event which tolls the statute
of repose in this particular case,
and that really is the gist
of the plaintiff's argument in this case.
-: But don't you need a separate act of negligence, right?
Justice Gaziano is saying, "I'm reading
through the expert's report, and it's focused
on the one outside of, the EKG outside of the statute."
Don't you need some separate act of negligence
that's not dependent on that to keep this case alive?
Because it's not just that you kept missing that EKG point.
You need something separate, right?
We've said that,
at least the appeals court said that clearly.
Atty. Bierhans: Yes.
-: So what's separate?
What was the separate, independent act of negligence
that happened during the time period?
-: Based on Dr. Pell's testimony,
not only in his three reports, but in this case,
we have the benefit of a full day Daubert hearing,
which we don't normally have,
and that's admittedly pretty rare, I think.
In this particular case, Dr. Pells has made clear
that each visit between 2006 and 2016 at the time
of death is in fact an independent event
that tolls the statute of repose.
-: But again, I mean, and Justice Garcia knows
the expert report better than I do,
but my understanding of it is that he's overweight,
and there are other things, but nothing,
if you ignore the EKG, which you're, it's too late,
doesn't one of those visits have to be negligent itself?
Okay, he's heavy and his blood pressure is this,
but that doesn't say that you should do anything,
from what I understand.
You don't need that missing EKG each time.
-: Well, not necessarily.
As Dr. Pells has also testified in this case,
that even if the 2006 EKG was normal, and not abnormal,
the constellation of symptoms required
continuing follow-up, continuing testing,
continuing treatment, and additionally,
he also talks at length about the issue
of various medications that could have prevented the death.
J. Gaziano: Counselor, this is important,
to me, at least.
Where can we find that?
What do you cite for that proposition?
-: In multiple places, Dr. Pells testifies that-
J. Gaziano: This in the Daubert hearing?
-: Yes, in the Daubert hearing, he testifies
at page 109 and 110, in volume two,
he testifies in volume two, page 138,
that the multiple risk factors and the abnormal EKG
and the signs and symptoms-
-: That's The problem, right?
Yeah, 'cause it's, yeah, well, it's always, as I read it,
it's always going back to the 2006 EKG.
-: No, he took, if I may,
can I read his ultimate opinion from the Daubert?
J. Gaziano: Sure, please. -: From the Daubert hearing?
After he testifies about all of the various treatments
that were available based upon this constellation
of symptoms, towards the end of his testimony
in the Daubert hearing, my question is,
"And doctor, based upon your review of the medical records
and the autopsy report, recognizing, by the way,
that when he died, his heart was 800 grams
as compared to the size of a normal heart,
which is approximately 300 grams,
and your experience, as you've described it,
treating thousands of patients with cardiac diseases,
do you have an opinion to a reasonable medical certainty
as to what the standard of care required
that the qualified internist do
to treat Mr. Belmar's cardiac health
between 2006 and 2016?"
"Yes, I do."
"And what should he have done?"
"Dr. Moore should have obtained an EKG,
and based on the findings of that EKG, either proceeded
with additional cardiac testing
that would've been indicated, or refer the patient
to a consulting heart specialist, a cardiologist."
"And was that done in this case?"
"No, neither was done."
"And doctor, based upon the documents
that you've reviewed in this case
and your experience as you've described it,
do you have an opinion to a reasonable medical certainty
as to the cause of Mr. Delmar's death?"
"Yes, I do."
"And what is the cause of his death?"
"The cause of death was a cardiac arrest."
"And do you have an opinion
to a reasonable medical certainty
as to whether or not his death was preventable
if he had been treated as you described?"
"Yes, I do."
"So what is your opinion?"
"It is my opinion that
if Mr. Belmar had been appropriately evaluated
and treated according to the standard of care,
that his death would've been preventable."
I don't know that a plaintiff trying
a medical negligence case can do more than this,
and it's clear based upon his testimony that that standard
of care was not adhered to during the entire period
between 2006 and 2016.
J. Kafker: The 2006 includes the EKG though, right?
-: Excuse me?
-: When you say, I mean, you said from between 2006
and 2016, that includes the EKG that's missed, right?
It's not, you didn't ask, "Okay, forget about the EKG.
When he shows up heavy and blankety blank,
should there have been another EKG,
or should there have been?"
You may have done this, it's a question, not an answer.
Did you point, 'cause you can't rely on that EKG,
so you need to somehow find negligence separate
and apart from the fact that they missed that EKG, right?
-: Yes, and that's the point
that Dr. Pells was trying to make, you haven't-
-: When you frame the question as 2006,
doesn't that incorporate the EKG?
Atty. Bierhans: Certainly, and there's nothing wrong
with incorporating the EKG.
-: Well, but I understand he wants to get,
sort of use the failure on the EKG in 2006, I get it,
that can't end things,
but it seems to me you're still relying on it
in that question because the doctor is,
the expert is building in the fact that you had this EKG
and you should have done something.
Don't you have to ask, separate and apart from that,
should you have done something
without any knowledge of that EKG?
-: Yes, and I would point again to volume two, page 109
to page 110, where Dr. Pells testified
that even if Mr. Belmar had a normal EKG in 2006,
his multiple risk factors warranted the performance
of a follow-up EKG and additional testing
because these conditions worsen over time.
J. Kafker: Where is that, sorry, it's volume two what?
-: Volume two, page 109 to 110,
and I can read my question, which I think answers-
J. Gaziano: No, yeah, we have, we have,
we'll look it up if we have any,
I don't wanna waste your time reading to us.
-: So I think that it's clear you have an individual,
I hate to use the word obese, but he's over 300 pounds.
He has hypertension, he has sleep apnea,
and over a 10 year period, no testing is done
such that treatment would be warranted
to somehow prevent this death.
-: So if we read the Daubert hearing as carefully
as you have, we'll come to the conclusion
that someone who presents overweight, hypertension,
with sleep apnea should have had cardiac follow-up?
-: Absolutely, each and every time,
over 13 visits over a 10 year period,
and this is not a situation like in the Moran case
where there was a six-year gap in treatment.
He continued with this constellation of symptoms to go
to the doctor twice every year over a 10 year period,
and nothing was done, and I think what frankly I find
most disturbing about this case is not only Dr. Kinsfogel,
but Dr. Moore himself, Dr. Kinsfogel,
the defendant's expert testified
that notwithstanding all of these symptoms,
his death was not foreseeable, it was not preventable.
Dr. Moore testified that notwithstanding
all of these symptoms, he was no more at risk
for a cardiac incident than the average person.
That's absurd, that's for the jury to decide,
but to suggest that this particular individual was going
to die no matter what, that's simply not credible at all,
and that's why the case needs to go to a jury.
J. Budd: Okay, thank you.
-: I have nothing further, thank you very much.
-: Attorney O'Shea?
-: Morning, Your Honors, Stephen O'Shea
on behalf of Dr. Moore and Dr. Moore's PC.
With me today is Alexis Harrington from my office.
To touch upon the question about is there anything
other than the EKG, there really isn't.
-: Well, let me read you exactly what he just said,
"Okay so, and even if he had had a normal EKG in 2006,
would his underlying risk factors warrant the performance
of a follow-up EKG?"
"Yes, it would."
"And why is that?"
"Because these conditions can predispose him
to cardiac disease and can worsen over time."
Isn't, but he's saying, he asked the question I just asked,
basically, okay, if the EKG was normal in 2006
and not abnormal,
would you still have to do these subsequent EKGs?
Isn't that a separate act of negligence?
-: No, it's not, for two reasons, and the first one,
and the appeals court actually addressed that
in its decision at the very end,
that the key word in that question was warrants.
There is no standard of care opinion question
that you just read.
He's not saying based upon a reasonable degree
of medical certainty, take out the EKG
and he's presenting with these signs, the standard of care
of the average qualified internal medicine practitioner
would've required him.
He's saying warrants, not requiring him.
-: But counsel,
but doesn't Dr. Pell's report extensively discuss
the standard of care in the record appendix one at,
there's a bunch of his, he had three reports,
but at RA-154, Dr. Pells', I think maybe second report goes
through the standard of care for someone
with all of Mr. Belmar's conditions,
and says that he should have gotten testing.
-: Always tied in every one of those reports to the EKG,
the EKG and his underlying cardiac risk factors,
which by the way, all four of them were pre-2010.
J. Wendlandt: But just let me, I'm sorry, go ahead.
J. Dewar: Go ahead.
-: Didn't the expert also opine
that there was a flaw in the treatment
in that Dr. Moore never ordered another EKG?
Isn't that exactly the testimony
that Justice Kafka was alluding to as well?
-: The alleged negligence is that the EKG was abnormal.
-: No, this is separate, I think.
It's a statement that not ordering another one
within the statute of repose period was also negligent.
-: Which is hinged to the EKG.
-: Why does that matter?
It seems to me that you're proposing a standard
that would say it's okay for a doctor
when making a decision whether to,
or actually it's required for a doctor
when making a decision whether to order a test
to ignore the events that preceded that.
Why is it that a doctor shouldn't be required when deciding
whether to order a test to look at the results
of a previous test as well?
-: I think the issue is the statute
of repose once it starts to tick,
and in this case, it starts to tick in 2006
when Dr. Moore receives that EKG on December 13th
and does not order a test, even in light
of those cardiac risk factors, that claim is now ticking,
and if the complaint. -: The only cases you cite
for this proposition are failure to diagnose cases,
and that's not what this case at bottom is.
This case at bottom, as I understand the theory,
is a failure to test, to order tests.
-: I think it's a failure to diagnose,
do the test to make a diagnosis
of cardiac disease. -: Right,
so in Rudenauer, for example,
and in Moran, the tests were performed
and then the doctor looked, over and over,
there were tests repeatedly performed,
and the doctor failed to diagnose,
and we said that was a continuing stream of treatment,
and therefore the statute of repose applied.
But here we don't have that.
We don't have a continuous stream of treatment,
we have a lack of treatment.
We have plenty of visits in which the doctor doesn't perform
the initial test, and I think that's the crux
of the theory of negligence.
-: Okay, and so, and I'd fall back
to the language in the statute.
And the question really, if you're exploring
modifying or overruling Moran,
which I think this case is on all fours with,
would be are you entertaining the thought
of multiple, definitively established events?
J. Wolohojian: If the doctor-
-: Or is just the one?
-: If the patient had, let's assume all facts the same
except the following fact,
that the patient decides to choose doctors,
to change doctors at some point
that would be within the statute of repose,
could the patient bring a claim against the second doctor?
-: Sure, if there's an expert who's gonna testify
that that doctor- -: As said,
everything the same, everything the same,
so in essence, isn't your rule leading to the conclusion
that the failure here was the patient's failure
to switch doctors?
Atty. O'Shea: No.
-: Why not?
-: I mean, the issue in the case is whether the statute
of repose bars this claim.
J. Wolohojian: But it wouldn't bar the claim
if the doctor were different.
-: Right.
-: Hmm, well, and I mean, it's a particularly different
with Moran where, so not only was this years earlier,
but I believe the experts were,
and you can correct me if this is actually wrong,
but the expert report suggests
that this old EKG from 2006 was not even
in the doctor's records for this patient, is that correct?
-: Which was not true, and he realized it later.
J. Dewar: So that was corrected?
-: In the Daubert hearing, we clarified that.
J. Dewar: Okay, thank you. -: And it's actually
in the opinion as well.
J. Dewar: Thank you.
-: Yeah.
I would say really the issue is,
is this continuing treatment,
or are there separate, independent,
definitively established events after December 6th
or December 13th of 2006
that you can point to with expert medical testimony
to support a claim against Dr. Moore?
And the answer is no, the closest they get,
and even if you take that language
of the testing would've been warranted
if just based on the independent factors alone,
the cardiac risk factors, those existed in 2006.
It's the same case, it's the same claim.
Every visit, it's the same exact claim.
There is nothing to distinguish 2007, 8, 9, 10, 11, 12,
all the way to 2015 from 2006, and so if yes, if-
J. Wendlandt: Except it's a new opportunity
for the doctor to actually correct the mistake.
-: And here's the rub, right?
So if Mr. Belmar had come in
with highly elevated blood pressures
and Dr. Moore didn't do anything about it,
that's an independent basis to say,
"Hey, wait a minute, that's a new claim."
If he had high LDL, which Dr. Moore was checking
on a regular basis, and they were all within normal limits,
if he ignored that, that's an independent basis
to bring a claim against Dr. Moore.
If he came in and said,
"I have crushing chest pain every day
of the week for the last month,"
that's an independent basis
to bring a claim against Dr. Moore.
J. Gaziano: What was the shortness of breath
related to stress test, I think?
-: There was a reference in the record he came in
on one occasion and said that he had some-
J. Gaziano: Tightness in the chest.
-: And I asked Dr. Pells, you know, did he have any symptoms
that would've warranted testing, and he said no.
The reason he needed the testing was because of the EKG
and the underlying cardiac risk factors, no symptoms at all.
They raise the issue of the CIMT test
and whether there was some abnormalities.
J. Gaziano: That's in the Daubert hearing?
-: Yes. J. Gaziano: Okay.
-: And it's partially in the Pells reports as well,
and he admitted that the CIMT test did not warrant testing.
He kept going back, the only reason to do it is
because of the abnormal EKG
and the underlying cardiac risk factors,
which existed in 2006, and by the way,
Pells admitted Dr. Moore took great care,
yeah, Dr. Moore took great care of Mr. Belmar,
looking at it without the benefit of that testing,
and he only says if the testing had been done
and the testing had showed cardiac disease,
then we might treat him differently.
But without that information, Dr. Moore was doing great
as far as his care on treatment.
-: You seem to have, before when you were talking
about if he had come in with such and such urgent care,
urgent situation, then he might have had to do something,
and it made me think that you're essentially making
an argument that it can't be negligent
to not engage in preventive care,
because that is essentially
what we're talking about right here,
there's a man who has many, many risk factors,
and preventive care would involve this,
Dr. Pells is saying, giving tests
to make sure there's not something else going on.
Is there any basis in law for that?
-: What I'm saying is that you can't take the claim
and read the statute, it's "In no event
shall any action be commenced more than seven years
after occurrence of the act," singular,
"or omission, which is the alleged cause
of the injury upon which such action is based."
So the issue is not whether it's preventative care or not,
it's is the claim downstream
the same claim as the first one?
-: Well, I think the claim is the omission
of preventive care for all the years
from after the EKG onward.
-: Frankly, we don't have that here,
because he's always looping in the EKG.
It's not just he failed
to provide adequate preventative care.
It's there was an abnormal EKG in 2006.
That abnormal EKG, coupled with all
of those cardiac risk factors should have caused him
to do these things.
J. Wendlandt: And you don't think the omission
of a subsequent EKG is enough?
Atty. O'Shea: That what?
-: The omission in the 10 year period between 2006
and 2016, the omission, the failure
to order another EKG, you don't think
that would be enough to sustain the claim?
Atty. O'Shea: No, because it's what he was saying
in 2006.
-: No, I mean, it's a little different, right?
The 2006, I understand that the statute
of repose has run on that, but now we have a doctor
who has repeated opportunities to do another EKG,
and according to the expert, that was warranted.
That would have then given him the information
that he would've needed in order to correct course.
Atty. O'Shea: Right, which is what he's saying 2006.
-: But there's one other component to that,
and you haven't mentioned this, 10 years elapse.
J. Wendlandt: Yeah.
-: I mean, the idea that for a lot of us,
the older we get, the worse off we get.
So the idea you kept pointing to there's no thing
that came in to say, "Hey, maybe this is the reason
why we should order a subsequent EKG,
you come in shortness of breath,"
or is there some other physical thing that happens
to trigger a new look and not just be relying on 2006?
Why not just age, why not just age?
I mean, if you have a 40-year-old with all
of these underlying physical conditions,
certainly being 45 makes it a little bit worse,
being 47 makes it a little bit worse,
and being 50 makes it a little bit worse.
So why wouldn't all of these things say
you can't just keep going back and saying you are
as you were in 2006 for all time?
-: That's in part a standard and fair question
that Pells never addressed,
so there's no expert testimony in the record to suggest
that that would've been required.
And I would say lastly,
there was a secondary argument in support
of the summary judgment motion, which I think is equally
as persuasive as the first, and that is the causation issue.
And it is in Rudenauer, it's the basis
of the Rudenauer decision.
They addressed the fact that there was this other complaint
in 1995 that would've been within seven years
of the filing of the complaint, and so this court looked
at that and said, "Well, wait a minute.
There's no expert support to say
that if something had been done at that time,
it would've made a difference."
In this case, it's very, very similar.
I asked Dr. Pells, "When did the microscopic fibrosis
that triggered the cardiac arrhythmia happen?"
Open-ended question, and he said,
"I can't say say precisely.
That's not something that we know," and so I went further.
I said, "Well, could it have happened in 2006?
Could it have been there already?"
"Yes, it could've."
"2007?"
"Yes, it could've."
"2008?"
"Yes, it could've."
"2009?"
"Yes, it could've."
"2010?"
"Yes, it could've."
He never rendered an opinion as to when that happened,
and it's the plaintiff's burden of proof to show
that their claim is not barred by the statute of repose.
And to do that, he would've had to have rendered an opinion
based upon a reasonable degree of medical certainty
that Dr. Moore's failures after 2010 at the latest,
December 13th, 2010,
caused Mr. Belmar's death. -: Would a subsequent EKG
have shown when that particular condition
you were referring to began?
-: My cardiologist said
not only would an EKG not have done it,
an echocardiogram wouldn't have done it,
it wouldn't have been picked up on any type
of testing other than a cardiac MRI, maybe,
and there are very special indications
for doing a cardiac MRI,
so it probably never would've been picked up.
J. Wolohojian: So you would've needed a test?
-: What's that?
-: So one would've needed a test?
-: And questionably whether, even if you did that kind
of a test, it would've been detectable.
It was three millimeters, you know,
less than a half of a centimeter.
Most of those tests don't have that high resolution.