Opinion
No. 11–P–1628.
2013-04-3
HOA HO v. Richard HODIN.
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Hoa Ho, appeals from a September 22, 2009, Superior Court judgment on a jury verdict dismissing her medical negligence action against the physician defendant, Richard Hodin, who performed a thyroidectomy on the plaintiff in April, 2002. We affirm.
The plaintiff filed this malpractice action on April 28, 2005. After trial in September, 2009, the jury answered special questions, finding the defendant negligent, but that his negligence was not a substantial contributing cause of the plaintiff's injury. In this appeal, the plaintiff argues that the judge improperly refused to instruct the jury on the combined effects of the defendant's negligence and the plaintiff's preexisting connective tissue disease.
Factual background. In the course of a visit to the walk-in unit at Massachusetts General Hospital (MGH) on March 18, 2002, the plaintiff was admitted to MGH that day for an extensive work-up for her complaints of fever, nausea, lack of energy, and weight loss. A CT scan revealed a papillary carcinoma of her thyroid. The plaintiff was discharged on March 29, 2002, with a primary diagnosis of fever of unknown origin, and was scheduled to consult with an endocrinologist and infectious disease specialist. The plaintiff consulted the defendant on her thyroid carcinoma and he performed thyroid surgery on April 22, 2002. The plaintiff was discharged the next day. On May 8, the plaintiff returned to the defendant who observed swelling and infection of the neck wound. The defendant took the plaintiff to Dr. Cameron Wright, a thoracic surgeon, who performed emergency surgery that day to drain the infection. He found two perforations of the trachea and one area of impending necrosis. One of the perforations was repaired, and a tracheostomy placed through the other. The plaintiff was admitted to MGH and administered antibiotics. On May 15, 2002, Dr. Wright packed the wound, which was not healing, and placed a feeding tube to improve the plaintiff's nutrition. Although the neck wound infection was cleared by June 11, the plaintiff remained at MGH until September 16, 2002, and was treated for a number of ailments not related to the thyroid surgery. She subsequently was treated by a rheumatologist, Dr. Dwight Robinson, from January, 2003, to November, 2005, and in April, 2009. He successfully treated her continuing fevers and diagnosed her with a systemic autoimmune disease (also known as connective tissue disease).
Analysis. Our examination of the record is conducted to determine whether the plaintiff has met her burden to prove a causal connection between the defendant's negligence and the plaintiff's injury. Held v. Bail, 28 Mass.App.Ct. 919, 920–921 (1989), and cases cited.
The plaintiff sought to show that the defendant negligently cauterized the plaintiff's trachea, which caused perforations and infection of the trachea, leading to a number of the many difficulties the plaintiff experienced after the thyroidectomy. The defendant asserted that the plaintiff's difficulties were the result of her inability to heal from normal postoperative trauma caused by her preexisting connective tissue disease.
The plaintiff's position was advanced by her surgical expert, Dr. David Levine, who opined that the defendant deviated from the standard of care by excessively burning the plaintiff's trachea during cauterization of the area with a Bovie device. He stated the burning was the “only possible mechanism” for the plaintiff's injuries, and at the time of the surgery, she had not been diagnosed with a systemic disease. The plaintiff's infectious disease expert, Dr. Leanne Bruno–Murtha stated that the plaintiff's injury came from an acute, not chronic cause, and that her subsequent complications during her lengthy hospital stay were related to the neck wound infection. The plaintiff's rheumatology expert, Dr. Richard Roseff, could not be certain that the plaintiff had an autoimmune illness, and could not make a connection between an autoimmune disease and the infection.
Experts for the defendant testified as follows.
A surgical expert, Dr. Roger Graham, opined that the defendant complied with the standard of care in performing the thyroidectomy, and stated that there was nothing to suggest excessive cauterization or inadvertent injury to the plaintiff's trachea. He disagreed with Dr. Levine's theory that excessive burns would lead to perforations or infection in three to five days, pointing out that the perforations and infection in this case did not appear for some sixteen days, and that the endocrinologist and infectious disease physician who saw the plaintiff after the thyroidectomy did not observe any swelling or infection of the neck wound. He stated that a certain amount of trauma is expected following surgery, and the plaintiff's lack of proper healing was the major contributing factor in the development of perforations of her trachea.
A rheumatology expert, Dr. Bonnie Bermas, testified that the plaintiff had a not clearly defined systemic rheumatologic disease (the same as connective tissue disease) in February, 2002, evidenced by poor healing, which could lead to inflammation and perforation of the trachea. She also stated that the disease is episodic with healthy periods and periods of flares.
The surgeon who performed emergency surgery on the plaintiff, Dr. Cameron Wright, testified that he observed no evidence of a burn injury on the plaintiff's trachea, and opined that she had a serious underlying systemic disorder which played a role in the plaintiff's slow and poor healing.
Finally, the defendant testified that he carefully inspected the surgical area and trachea before closing the wound and saw no injury or burn marks on the trachea. He testified that much consideration was given to whether the plaintiff, who appeared in poor health, should undergo surgery. After consultation with several other doctors, the decision was made to perform the surgery to avoid the risk that the cancer would spread or cause complications, taking into account that thyroid surgery normally is a low-risk procedure.
Prior to closing arguments, the judge asked counsel whether there were any comments on the final draft of her instructions. Plaintiff's counsel asked for an instruction, previously submitted, on the combined effects of the defendant's negligence and the plaintiff's existing disease or condition, citing Wallace v. Ludwig, 292 Mass. 251 (1935).
The judge denied the request, ruling that the case was not one of exacerbation of a preexisting condition, and that there had been no expert testimony that a preexisting condition had been exacerbated. Moreover, the judge commented that counsel “went to great lengths to establish that [the plaintiff] was healthy prior to surgery.” Counsel stated he would rely on the reasoning of Wallace, in saving his rights.
On appeal, and in contrast to the testimony of her experts, the plaintiff points to the substantial evidence in the case of the plaintiff's preexisting illness and its potential to impede healing. The quantity of that evidence alone, however, does not require the instruction the plaintiff sought. There was no expert testimony that the plaintiff's preexisting disease combined with her injuries to cause greater harm or that her preexisting disease was aggravated by her injuries. Without such testimony, the plaintiff's reliance on Wallace is misplaced.
Wallace v. Ludwig, supra at 256, states:
“It is settled that, where an injury arising from a cause which entails liability on the defendant combines with a preexisting or a subsequently acquired disease to bring about greater harm to the plaintiff than would have resulted from the injury alone, the defendant may be liable for all the consequences.”
We conclude that the judge did not err in denying the plaintiff's request for an instruction based on Wallace. A party is not entitled to an instruction on either a legal theory which has not been made an issue in the case or on facts not appearing in the case. Holmes v. Sullivan, 241 Mass. 195, 196 (1922). Aceto v. Dougherty, 415 Mass. 654, 659 (1993). Nolan & Henry, Civil Practice § 35.6, at 697 (3d ed.2004).
Judgment affirmed.