Opinion
No. 15–P–868.
05-27-2016
Johnette ELLIS, administratrix, v. Peter CLARKE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this wrongful death and medical malpractice case, the defendant, Peter Clarke, M.D., appeals from a judgment in favor of the plaintiff, Johnette Ellis, administratrix of the estate of Jeanne Ellis (decedent). The jury, in answer to special questions, determined that Dr. Clarke was negligent in his care and treatment of the decedent and that Dr. Clarke's negligence was a substantial contributing factor causing injury to and the death of the decedent due to lung cancer. Dr. Clarke appeals from the denial of his motions for judgment notwithstanding the verdict and for new trial or, in the alternative, remittitur. We affirm.
1. Judgment notwithstanding the verdict. “In determining whether a motion for judgment notwithstanding the verdict ... was properly denied, we consider whether 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.” Haddad v. Wal–Mart Stores, Inc. (No.1), 455 Mass. 91, 94 n.5 (2009) (quotations omitted). We view the evidence “in the light most favorable to the plaintiff, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence.” Ibid. (quotation omitted).
The defendant contends that the evidence at trial was insufficient as a matter of law for several reasons, namely that: (1) one of Ellis's expert witnesses, a radiologist, was not qualified to render an opinion on the proper standard of care because he was not an emergency radiologist; (2) there was no evidence of a specific date by which proper diagnosis and treatment would have been initiated; (3) there was no evidence that the pain and suffering the decedent experienced was different than what she would have experienced had she been properly diagnosed; and (4) medical opinion testimony about the “stage” of the decedent's cancer at the time it should have been detected was inadequate. The motion judge, who was also the trial judge, addressed each of these issues in a thorough and well-reasoned memorandum of decision and order, and denied the motion. We agree with the judge's treatment of each of these issues, which we address in turn.
a. Expert. Doctor Clarke contends that one of Ellis' expert witnesses, Dr. Luchs, a radiologist, was not qualified to render an opinion on the proper standard of care because he was not an emergency radiologist. “A medical expert need not be a specialist in the area concerned nor be practicing in the same field as the defendant. ‘It is well established that the professional specialty of a medical practitioner offered as a witness need not be precisely and narrowly related to the medical issues of the case.’ “ Letch v. Daniels, 401 Mass. 65, 68 (1987), quoting from Kapp v. Ballantine, 380 Mass. 186, 192193 n.7 (1980). “The crucial issue is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony.” Letch v. Daniels, supra (quotation omitted) The judge determined that Dr. Luchs was qualified; he was a diagnostic radiologist who specialized in vascular and interventional radiology, “throughout his career he has read and reported chest x-rays from emergency departments,” and his “education, training and experience amply qualified him to render an opinion in this case .” There was no abuse of discretion in admitting the testimony. Indeed, Dr. Luchs had substantially similar education and training as both Dr. Clarke and Dr. Abujudeh, one of Clarke's expert witnesses. Furthermore, Dr. Luchs testified that his job often required him to read x-rays in an emergency room setting.
Citing to Brune v. Belinkoff, 354 Mass. 102, 109 (1968), Dr. Clarke also argues that Dr. Luchs' testimony was insufficient as a matter of law because Dr. Luchs testified as to the standard of care of a radiologist, not an emergency radiologist. There was evidence from Dr. Clarke's expert, Dr. Abujudeh, that the standard of care for a radiologist is the same as the standard of care for an emergency radiologist. Reading Dr. Luchs' and Dr. Abujudeh's testimony together as we must, see Haddad v. Wal–Mart Stores, Inc. (No. 1), 455 Mass. at 94 n.5, there was ample evidence concerning the appropriate standard of care.
b. Causation. The judge did not err in ruling that Ellis did not have to produce evidence of a specific date by which the diagnosis should have been made and treatment should have commenced had the appropriate standard of care been followed by Dr. Clarke. The issue was waived. The judge noted “no argument approaching this claim was raised [in Dr. Clarke's motions for directed verdict] .” “A party may not raise an issue in a motion for judgment n.o.v. that was not raised in a motion for directed verdict.” Matley v. Minkoff, 68 Mass.App.Ct. 48, 52 (2007) (“[A] motion for a directed verdict ... must state the specific grounds therefor” [quotation omitted] ).
Even if the defendant's argument has not been waived, it has no merit. The jury could have found that on October 28, 2006, the date of Dr. Clarke's report on the chest x-ray, the nodule should have been detected, at which time further testing would have been ordered and such testing would have shown that the decedent had cancer. Not only does the law presume “that a warning, if given, will be heeded,” Glicklich v. Spievack, 16 Mass.App.Ct. 488, 493 (1983), “[t]he testimony of [Dr. Luchs], that to a reasonable medical certainty the [decedent] ... would have had a much improved chance of survival or longer life if treatment meeting accepted standards of care had been appropriately initiated, was sufficient to meet [Ellis's] legal burden” (emphasis added). Id. at 495. Cf. Goudreault v. Nine, 87 Mass.App.Ct. 304, 310–311 (2015) (burden met at medical tribunal stage where testimony permitted inference that had doctor complied with appropriate standard of care, “cancer would have been diagnosed nearly one year earlier, and at a time when it was ‘amenable to cure’ ”). Contrast Held v. Bail, 28 Mass.App.Ct. 919, 920 (1989) (“Missing from the record is any evidence that intervention ... [on a particular date], would have averted the surgery performed on [a subsequent date]” [emphasis added] ).
c. Conscious pain and suffering. There was sufficient evidence to support a finding that the decedent endured conscious pain and suffering that was distinct from any pain and suffering the decedent would have experienced from the normal course of treatment had she been properly diagnosed. The course of the disease imposed additional burdens that would not have been endured had she lived. There was evidence that the decedent experienced conscious pain and suffering associated with metastases to the spine and hip, the prolonged chemotherapy required by the Stage IV diagnosis, the end stage of the disease, and the dying process. In addition, the jury were permitted to infer that the suffering associated with the cancer treatments would have been materially different if the decedent had expected to live, rather than die, and that the knowledge of a preventable death caused conscious suffering.
d. Staging. The defendant also argues that the evidence, was insufficient because Dr. Levin's testimony, that on October 28, 2006, the decedent had stage I cancer was “based upon certain assumptions about the findings on [the] chest x-ray.” This argument goes to the weight of the evidence and the credibility of the witness, which were issues for the jury. See Haddad v. Wal–Mart Stores, Inc. (No. 1), 455 Mass. at 94 n.5.
2. Motion for new trial or remittitur. Dr. Clarke submits several reasons why the judge erred in denying his motion for new trial or, in the alternative, remittitur.
a. Pretrial disclosure. The defendant claims that Ellis failed to comply with Mass.R.Civ.P. 26(b)(4), 365 Mass. 774 (1974), where her pretrial disclosure on Dr. Levin's expert testimony “was entirely silent on staging and survival rates,” and therefore his testimony on these matters should have been excluded.
“In the absence of prejudicial error resulting from an abuse of discretion, we will not disturb a judge's exercise of discretion regarding expert witness disclosures.” Kace v. Liang, 472 Mass. 630, 637 (2015) (quotations omitted). The judge determined that “the proffered testimony was well within the scope of the disclosure” and that “there was no surprise or prejudice in [the] admission of the testimony of Dr. Levin.” After carefully reviewing Ellis's pretrial disclosure and the testimony admitted at trial, we agree. For example, Dr. Clarke was on notice that “Dr. Levin may ... be expected to testify that had Dr. Clarke rendered care in accordance with the accepted standard of care ..., [the decedent's] lung cancer would have been diagnosed and treated as early as October 2006, when, in my professional opinion, it was an earlier stage and more amenable to cure.” There was no abuse of discretion.
b. Mortality tables. The defendant contends that mortality tables were erroneously admitted because the decedent “had been diagnosed with multiple, serious pre-existing health problems entirely unrelated to lung cancer.” Mortality tables “are admissible regardless of the poor health ... of the person whose life expectancy is being estimated. When the opposing side believes that the person in question, because of poor health, has a lower life expectancy than that reflected in the mortality tables, the usual remedy is to offer evidence to that effect and argue the point to the jury.” Harlow v. Chin, 405 Mass. 697, 714 (1989) (citations omitted). Here, such evidence was admitted and argued to the jury.
c. Exclusion of evidence. The defendant also contends that the judge erred by precluding the admission of evidence that the decedent continued to smoke after her cancer diagnosis. In denying the defendant's motion, the judge explained that she would have allowed the admission of such evidence had Dr. Clarke elicited expert testimony, either from Ellis' witnesses or his own, that there was a causal link between the decedent's continued smoking and the decedent's prognosis, treatment, or life expectancy. The judge also noted that “[a]pparently, [Dr. Clarke] had no such evidence to offer as he never requested or proposed such a voir dire.” There was no abuse of discretion. See, e.g., Barvenik v. Board of Aldermen of Newton, 33 Mass.App.Ct. 129, 137 n.13 (1992) (“The need for expert testimony depends, as in all cases, upon the trial judge's discretionary determination whether or not the subject matter is beyond the scope of the common knowledge, experience and understanding of the trier of fact without expert assistance”).
d. Damages. The defendant contends that the damages awarded by the jury were excessive. “[A]n award of damages must stand unless ... to permit it to stand was an abuse of discretion ..., amounting to an error of law. It is an error of law if the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 464 (2013) (quotations and citations omitted). The judge did not abuse her discretion in denying the defendant's motion where, as here, the damages awarded were not greatly disproportionate to the injury proven, nor did the award represent a miscarriage of justice.
The jury awarded Ellis $1 million for the conscious pain and suffering of the decedent, $10 million in compensatory damages for the loss of the decedent's reasonably anticipated support, services, care, comfort, companionship, assistance, protection, society, guidance, counsel, and advice ($3 million of which was for such loss prior to the verdict, and $7 million of which was for such loss for 17 years after the verdict).
The defendant also argues that the judge's various evidentiary rulings adversely affected his substantial rights. For the reasons already stated, we find no merit in this argument.
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Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict affirmed.
Order denying motion for new trial or, in the alternative, remittitur affirmed.