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

22-P-1204

ELIZABETH OWENS

vs.

ORBELINA ERAZO & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Elizabeth Owens, suffered an injury while 

hospitalized after hip surgery. She brought a medical 

malpractice action against Orbelina Erazo, R.N., Ron Agustin, 

P.C.A., Lauren O'Hara, P.T., and Brigham & Women's Faulkner 

Hospital (hospital). Defendants Erazo and O'Hara (collectively, 

defendants) subsequently filed requests for a medical 

malpractice tribunal. See G. L. c. 231, § 60B. The tribunal 

found in favor of the defendants. Owens did not post the 

required bond, and a Superior Court judge entered a separate and 

final judgment for the defendants pursuant to Mass. R. Civ. P. 

54 (b), 365 Mass. 820 (1974). Owens now appeals, claiming that

1 Ron Agustin, Lauren O'Hara, and Brigham & Women's Faulkner 

Hospital, Inc.
2

the medical malpractice tribunal erred in determining that her 

injuries were due to an unfortunate medical result. We reverse.

Background. We summarize the facts set forth in the 

plaintiff's expert affidavit (and the supporting materials 

contained in the offer of proof) in the light most favorable to 

her, reserving certain facts for later discussion.2 See Rahilly

v. North Adams Regional Hosp., 36 Mass. App. Ct. 714, 715-717 

(1994). Owens sought treatment at the hospital in March of 2019 

due to hip pain and underwent hip replacement surgery without 

incident on May 8, 2019. The surgery was completed by 12 P.M. 

At 3:10 P.M., Owens met with physical therapist O'Hara, who

evaluated Owens's physical limitations and physical therapy 

needs. The expert summarized O'Hara's recommendations that 

Owens:

"required one-person guard assistance (one or two hands on 

the body to help steady the body), a rolling walker, a bed 

rail, and verbal cues for hand placement for sit-to-stand 

[and] stand-to-sit transfers. [Owens] was assessed with 

impaired right hip range of motion, reduced right leg 

strength, and pain resulting in 'balance impairments and 

gait deviations.' Her functional limitations included 

impaired ability to perform sit-to-stand, bed-to-chair, and 

supine-to-sit [and] sit to supine transfers, impaired 

ambulation, and impaired ability to walk up [and] down 

stairs. She was at risk of falls and required anterior hip 

2 The offer of proof consisted of Owens's medical records and 

reports, affidavits from Owens and her husband, and an expert 

affidavit from Georgia Persky, Ph.D., M.B.A., R.N., N.E.A.-B.C., 

C.N.O.R., C.L.N.C., C.N.A.A. The medical records support the 

factual summary contained in the expert affidavit. The 

defendants challenge the sufficiency of the medical opinion, not 

the accuracy of the underlying facts leading up to the fall.
3

precautions and gait training. She was weightbearing on 

the right leg as tolerated and was allowed to engage in 

activity as tolerated."

The note was placed in the patient flow sheets and record 

between 5:01 P.M. and 5:10 P.M.

Defendant Erazo also checked on Owens several times that 

day, and recorded a Morse Fall Risk score of 35 (low) at 1:29

P.M. and a score of 45 (low) at 4 P.M. She noted that Owens was 

using a walker, required minimal assistance, and could engage in 

activity as tolerated.

At about 7 P.M., Owens requested assistance in getting out 

of bed and going to the bathroom. The nurse on duty called for 

the P.C.A. to assist Owens. As Owens got out of bed, she 

slipped, fell, and reinjured her right hip. As summarized by 

Owens's expert, based on the medical records submitted, the fall 

occurred because P.C.A. Agustin:

"unhooked an IV from a port in Ms. Owens's left arm and put 

a walker next to her bed. Ms. Owens sat up and began to 

pull herself up, holding onto the walker. Mr. Agustin was 

not using a guard belt, holding the walker, or touching Ms. 

Owens to brace her. As Ms. Owens stood up, her feet 

slipped on the wet floor. The floor was wet because the IV 

had leaked after being unhooked."

Owens's husband observed liquid on the floor and overheard the 

head nurse ask who had unhooked the IV bag. Another nurse 
4

described the IV as "leaking."3 A thirty-day report submitted by 

the hospital to the Department of Public Health described the 

injury as "likely preventable."4

Even after the fall, the assessments of Owens's fall risk 

varied greatly. P.C.A. Agustin continued to say that Owens 

required "minimal assistance" at 8:17 P.M. and 9:13 P.M. on May 

8. One nurse made the same notation at 12:17 A.M. on the 9th, 

two hours after a different nurse assessed Owens's Morse Fall 

Risk as 85 (high). A third rated the risk as 60 (high) at 1:03

A.M. on the 9th.

Owens fractured her hip in the fall and underwent revision 

surgery on May 10, 2019. She filed her medical malpractice 

complaint in May of 2020. As previously noted, the parties' 

dispute at the tribunal focused solely on the liability of Erazo 

and O'Hara.

With respect to defendant Erazo, the expert opined that 

Erazo was responsible for "for ensuring that Mr. Agustin was not 

allowed to manipulate or disconnect any intravenous tubing due 

to his lack of adequate qualifications." The expert stated that 

Erazo improperly assessed Owens's Morse Fall Risk as low (35-

3 There were also notations in the record that suggested that the 

IV bag was leaking before it was disconnected. This factual 

dispute is not susceptible to resolution by the tribunal.

4 The hospital did not disclose the condition of the wet floor in 

its report sent to the Department of Public Health.
5

45), when it should have been high (60 or greater).5 She further 

opined that Erazo, as the nurse on duty, was "responsible and 

accountable for supervising the co-defendant Ron Agustin, 

P.C.A., and reviewing and communicating to him physical therapy 

recommendations concerning the requisite level of assistance 

with mobility."

With respect to O'Hara, the expert opined that, "as the 

physical therapist of record, [she] was responsible and 

accountable for managing Ms. Owens's mobility and risk of falls, 

which included assessing, communicating to, and coordinating 

with her nursing staff the requisite level of assistance with 

sit-to-stand transfers."

Similarly, the expert opined that Erazo, O'Hara, the 

P.C.A., and the hospital all "failed to properly assess, 

properly communicate within Ms. Owens's healthcare team, and 

properly manage her risk of falls as evidenced by the fact that 

5 The expert considered all of the defendants (including the 

P.C.A. and the hospital) culpable for underestimating Owens's 

fall risk, stating:

"Ms. Owens was at high risk of falls, with a Morse Fall 

Risk score greater than 60, in light of her IV therapy, 

postoperative 'balance impairments and gait deviations' 

. . . her Oxycodone and other pain medication use for 

postoperative pain, her marked decline in function 

preoperatively, her secondary diagnoses of bilateral knee 

osteoarthritis, interstitial lung disease, and 

hypertension, and her prior fall on January 24, 2019."
6

the level of assistance provided by Mr. Agustin at the time of 

Ms. Owens's fall . . . fail[ed] to comply with the contact guard 

or minimal level of assistance with sit-to-stand transfers 

designated as the requisite level of assistance" in O'Hara's 

assessment and treatment plan. The expert concluded that the 

defendants deviated from the standards of care by failing to 

"properly assess Ms. Owens's high risk of falls," failing to 

properly communicate within her healthcare team the high risk of 

falls, and failing to "properly coordinate within her healthcare 

team the proper level of assistance for sit-to stand-transfers."

Discussion. A medical malpractice tribunal is charged with 

determining whether the plaintiff's offer of proof "if properly 

substantiated is sufficient to raise a legitimate question of 

liability appropriate for judicial inquiry or whether the 

plaintiff's case is merely an unfortunate medical result." 

G. L. c. 231, § 60B.6 "A plaintiff's offer of proof shall 

prevail before a medical malpractice tribunal (1) if the 

defendant is a health care provider as defined in G. L. c. 231, 

§ 60B, . . . '(2) if there is evidence that the [health care 

provider's] performance did not conform to good medical 

6 Under G. L. c. 231, § 60B, "[e]very action for malpractice, 

error or mistake against a provider of health care shall be 

heard by 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."
7

practice, and (3) if damage resulted therefrom.'" Feliciano v. 

Attanucci, 95 Mass. App. Ct. 34, 37 (2019), quoting Kapp v. 

Ballantine, 380 Mass. 186, 193 (1980). Here, "[w]e deal . . .

only with the question whether the offer of proof sufficiently 

established the existence of 'evidence' that the [two]

defendants did not conform to good medical practice." Booth v. 

Silva, 36 Mass. App. Ct. 16, 20 (1994).

The defendants assert that the tribunal decision was 

correct because the expert opinion was based on speculation and 

conjecture; specifically, that Erazo did not properly assess 

risk or communicate with P.C.A. Agustin, and that O'Hara did not 

communicate with Agustin. This argument misperceives the 

standard of review of the tribunal.

"[T]he plaintiff's offer of proof raises a legitimate 

question of liability appropriate for judicial inquiry if 

'anywhere in the evidence, from whatever source derived, any 

combination of circumstances could be found from which a 

reasonable inference could be drawn in favor of the plaintiff.'" 

St. Germain v. Pfeifer, 418 Mass. 511, 516 (1994), quoting Dobos

v. Driscoll, 404 Mass. 634, 656, cert. denied 493 U.S. 850 

(1989). See Lambley v. Kameny, 43 Mass. App. Ct. 277, 286 

(1997). "[A]n offer of proof is to be given an indulgent 

reading in favor of the plaintiff. . . . [T]he standard for 

considering expert testimony is an extremely lenient one, and 
8

. . . the evidence, including all permissible inferences 

therefrom, is to be taken in the light most favorable to the 

plaintiff" (quotations and citations omitted). Id.7

Given this "lenient" standard of proof at the tribunal 

stage, the defendants' call for greater specificity is 

misplaced. "[T]he offer of proof before the tribunal is made 

without the benefit of discovery," and it therefore "need only 

be sufficient to raise a legitimate question of liability, with 

proper evidentiary substantiation to follow." Feliciano, 95 

Mass. App. Ct. at 38. The level and substance of communication 

within Owens's health care team is in the hands of the 

defendants; Owens cannot be faulted for failing to produce it.

Moreover, the evidence before the tribunal indicated 

varying and disparate views of Owens's fall risk, even after her 

fall, suggesting (as the expert opined) a lack of coordination 

and consistency. The medical records disclose that she was 

using a wheelchair before her surgery and had other medical 

conditions. It is a fair inference, viewing the proffer in the 

7 The defendants also assert that the expert opinion fails to 

identify the professional standards upon which it is based. We 

read the expert affidavit to imply a standard of care. While 

the defendants' objections may or may not be an appropriate 

basis for a pretrial challenge to (or cross examination of) the 

expert in discovery, at the tribunal stage "a factually based 

statement by a qualified expert, without more, is sufficient to 

meet the tribunal standard." Feliciano, 95 Mass. App. Ct. at 

39, quoting Booth, 36 Mass. App. Ct. at 21.
9

light most favorable to Owens, that one or more professionals

underestimated the fall risk, or failed to communicate the fall 

risk to others, most particularly the P.C.A. It is an equally 

permissible inference that there was a lack of consistency and 

communication regarding O'Hara's recommendations regarding 

transfers. The P.C.A. left Owens physically unattended, 

contrary to O'Hara's directives. While the evidence after 

discovery may or may not paint a different picture, for purposes 

of the tribunal, this chain of events, coupled with the expert's 

opinion, viewed in the light most favorable to the plaintiff, 

was "sufficient to raise a legitimate question of liability, 

with proper evidentiary substantiation to follow." Feliciano, 

95 Mass. App. Ct. at 38. It is not for the tribunal to "examine 

the weight or credibility of the evidence," Cooper v. CooperCiccarelli, 77 Mass. App. Ct. 86, 91 (2010).

Conclusion. The findings of the tribunal are to be 

replaced by the decision of this court that the offer of proof 

of the plaintiff, if properly substantiated, is sufficient to 

raise a legitimate question of liability appropriate for 

judicial inquiry. The judgment of dismissal as to the 
10

defendants Erazo and O'Hara is vacated, and the plaintiff may 

proceed with her claims.

So ordered.

By the Court (Green, C.J.,

Wolohojian & 

Sullivan, JJ.8),

Clerk

Entered: June 2, 2023.

8 The panelists are listed in order of seniority.