Opinion
No. 11–P–1375.
2013-02-26
Rhoda Roland SHEARER v. Robert J. MAYER & another.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff brought this medical malpractice action individually and as administratrix of the estate of her late husband, Stephen Jay Gould, claiming that the defendant doctors negligently failed to timely diagnose his lung cancer, thereby causing his death or his loss of a chance of survival. In answer to special questions, a Superior Court jury found that neither defendant was negligent, and did not reach the issue of causation. The plaintiff appeals from the ensuing judgment and from the denial of her motion for a new trial. We affirm.
1. Testimony of defense expert Dr. Thomas Lynch. The plaintiff argues that the trial judge committed reversible error by admitting Dr. Lynch's testimony without first conducting a Daubert/Lanigan hearing,
and by refusing to strike his testimony at trial. We need not reach the merits of the issue, however, because Dr. Lynch's testimony was directed solely to the issue of causation,
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
and, hence, was immaterial to the verdict. See Footit v. Monsees, 26 Mass.App.Ct. 173, 180–181 (1988); Morgan v. Laboratory Corp. of America, 65 Mass.App.Ct. 816, 824 (2006). Contrary to the plaintiff's contention that Dr. Lynch's strong opinion on causation “undoubtedly tainted” the jury's finding on negligence, we see nothing to suggest that the issues of negligence and causation were muddled during the trial. To the contrary, the judge's instructions, together with the special verdict form, clearly conveyed that negligence and causation were distinct concepts, involving separate considerations, and that the jury's task was to decide the negligence and causation issues individually.
In substance, Dr. Lynch testified that, even if Gould's lung cancer was able to be diagnosed in 2001, as the plaintiff contended, it already was incurable.
2. Testimony of Dr. Salvatore G. Viscomi. The plaintiff's claim against Dr. Rebecca L. Dyson was that she negligently failed to identify a lesion in Gould's lung when reviewing a chest X-ray taken during a February 6, 2001, emergency department visit. The X-ray initially was read by Dr. Viscomi, a first-year radiology resident under Dyson's supervision, who was called by the defense as a percipient witness. On cross-examination, the plaintiff attempted to elicit that Dr. Viscomi's failure to identify the lesion was the product of his inexperience. After colloquy with the judge, defense counsel was permitted on redirect examination to inquire into Dr. Viscomi's impressions of the X-ray in 2005, when he again reviewed it and found no reportable abnormality.
The plaintiff takes the position that this was undesignated expert testimony, which should have been excluded. Where, however, the plaintiff “opened the door,” it was not an abuse of the judge's discretion to allow defense counsel to rebut the suggestion that it was only inexperience that caused Dr. Viscomi to read the X-ray as he did.
3. Exclusion of six medical articles. Exactly thirty days prior to trial, the plaintiff submitted a list of 102 separate items of medical literature that she expected to introduce in evidence, pursuant to G.L. c. 233, § 79C. The judge excluded six of the items on the ground that the plaintiff had failed to identify the authors' names as required by the statute. Because these articles concerned the issue of survivability, and the jury never reached the issue of causation, their exclusion was immaterial. Furthermore, even if the articles touched in some way upon negligence, the judge did not abuse her discretion in excluding them where a mandatory requirement of the statute had not been met. See Murawski v. Laird, 330 Mass. 599, 600–601 (1953).
4. Jury instructions.
a. Standard of care applicable to Dr. Robert J. Mayer. During the precharge conference, the plaintiff asked for an instruction that Mayer, an oncologist at Dana–Farber Cancer Institute, was to be held to the standards of both a medical oncology specialist and an internist. Because the evidence established that the treatment at issue was provided by Mayer as a medical oncologist, the judge declined to refer to the standard of an internist, stating that she would “note” the objection. Thereafter, she instructed the jury that “Dr. Mayer is held to the standard of care of the average qualified medical oncologist practicing in his field back in the early 2000's.” The plaintiff voiced no objection after the charge was given.
Passing whether the issue was preserved,
there was no error. The charge was legally correct and consistent with the evidence. Cf. Simmons v. Yurchak, 28 Mass.App.Ct. 371, 378 (1990) (upholding exclusion of “lesser standard” questions, as they were “likely to obscure the proceedings, at best, and misdirect them, at worst”).
See Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974); Flood v. Southland Corp., 416 Mass. 62, 66–67 (1993); Martignetti v. Haigh–Farr, Inc., 425 Mass. 294, 299 n.10 (1997); Rotkiewicz v. Sadowsky, 431 Mass. 748, 751–752 (2000).
b. Standard of care increases with degree of risk. The plaintiff also contends that the judge should have instructed the jury to the effect that a reasonable person will act more carefully as the danger increases. Because there is no indication that this point was preserved at any potentially relevant time, the issue is waived.
We observe, however, that the judge gave a full, fair, and complete charge on the standard of care applicable to claims of medical negligence. Thus, whether or not the requested instruction stated an accurate principle of tort law in other contexts, the judge did not abuse her discretion in refusing to give it here, where it may well have confused the jury as to the appropriate, specialized standard of care to be applied to physicians.
See note 5, supra.
Judgment affirmed.
Order denying motion for new trial affirmed.