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March 25, 2026 Get Citation Alerts Download PDF Add Note

WENDY MENDOZA-RIVERA & Others v. DOUGLAS A. ROMNEY & Others.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0664

• Precedential Status: Non-Precedential

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (384)

• PDF

Combined Opinion

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.

1. 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.

1. 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."

1. 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.

9