Morrison Mahoney partner Tory Weigand and associate Ti Ton won a rare interlocutory appeal in the Massachusetts Appeals Court.

The plaintiff in this case had filed a complaint in Middlesex County Superior Court against our client, a hospital, alleging “ordinary negligence” arising out of the care she received. In the course of her treatment, she was administered a dose of a drug that contained lactose, depomedrol dexamethasone solumedrol. After receiving the medication, she stopped breathing, had to be resuscitated, and was deemed in critical condition based on what was alleged to be a known allergy.

The plaintiff argued that this action sounds in “ordinary negligence” and not medical malpractice. Therefore, she contended, her claims were not subject to G.L. c. 231 §60B (the Massachusetts Medical Malpractice screening tribunal statute) and that expert testimony wasn’t required. A superior court judge agreed. The judge also found that this was a matter well within the purview of a jury to assess without the need for expert testimony at trial. 

We moved the court to reconsider its decision, which was also denied. We then filed an interlocutory appeal, arguing that the lower court erred in its interpretation of the tribunal statute and that a need for expert testimony in a case like this did exist. The appeals court accepted the matter for briefing and argument.

The appeals court subsequently vacated the superior court’s order and remanded the case for further proceedings. This was consistent with our client’s positions—that the tribunal statute applied and that expert testimony was warranted.