Opinion
No. 11–P–1502.
2013-01-29
Laura GINISI v. SAINT VINCENT HOSPITAL, LLC.
By the Court (KAFKER, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Laura Ginisi, filed suit against Saint Vincent Hospital, LLC (hospital), on behalf of herself, and as the legal guardian of her husband, Joseph Ginisi (Ginisi). A jury returned a verdict in the plaintiff's favor, finding that the hospital was negligent in Ginisi's care and treatment. The hospital now appeals from the second amended judgment, and from the trial judge's denial of its motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial, claiming that the judge erred in the wording of special questions. The hospital also argues that there was insufficient evidence to support the verdict on any of the conceivable theories presented, and that, even if one theory were supported, the damages awarded were excessive. We affirm. Factual background. On January 23, 2004, Ginisi went to the hospital emergency department complaining of dizziness and light-headedness. Thomas Maningas, a physician's assistant in the emergency department, ordered a CT scan. A resident radiologist, Dr. Preeti Gupta, looked at the CT scan and saw that there were recent “infarcts” or “strokes,” but, consistent with her training and standard hospital practice, she reported only that the age of the strokes was unknown, because the infarcts did not appear “old.”
Three other defendants were named in the case: Saint Vincent Radiological Associates, Inc.; Michael F. Meyerovitz, M.D.; and Ursula E. Anwer, M.D. A stipulation of dismissal as to Anwer was entered before trial. The jury found no liability for the other two defendants.
Having made no argument in her brief, the plaintiff's cross appeal is waived.
Specifically, Gupta testified that, in January, 2004, she was in the fourth year of her residency program; she had been in the program at the hospital since July 1, 2002, and had been trained there as a resident in radiology. She testified that, looking at the CT scan that she saw on January 23, 2004, she could say two things about the infarcts. “One is they are not old. There is no atrophy, and they are not old. The other thing is that they are not brand new, that they did not happen today. They are somewhere between maybe a day or two days to maybe three, four weeks. I cannot tell in that time range.” She agreed that, in her report, she said only that the infarcts were not new, which, in her mind meant they were not happening “now.” She could not remember whether she told Maningas that the infarcts could be as “new as one to two ... days old,” although she agreed that was a significant piece of information.
Gupta agreed that as a part of her resident training received at the hospital, she was instructed to report to emergency room personnel all important observations relating to CT scans. However, she also testified that it was the usual practice at the hospital “not to use the word subacute when interpreting a CT scan.” She further testified that “[t]here were twelve radiology attending radiologists who were training us, and everybody there had their own personal way of writing....” Gupta testified, “If the infarct is old, I would mention old, the word ‘old’ with it, if I felt that the infarct was old.... [I]f I do not feel that the infarct is old, I usually do not say anything....” After receiving Gupta's report, Maningas discharged Ginisi, diagnosing his condition as benign vertigo.
On February 18, approximately three and one-half weeks after his initial trip to the hospital's emergency room, Ginisi returned, now suffering from significant neurological deficits from progressive brain damage. Several tests were conducted under the direction of a neurologist who was not an employee or agent of the hospital, but a brain biopsy was not performed until February 23, 2004. On February 27, Ginisi was diagnosed with intravascular lymphoma (IVL), a rare form of cancer. He was transferred to Massachusetts General Hospital (MGH) in Boston for treatment on March 2; however, the hospital failed to send the pathology specimens along with him, and Ginisi's treatment was delayed further. The specimens were transferred at the request of MGH on March 5. Ginisi is now cancer free, but suffers from severe neurological deficits and must live in an institutional setting.
IVL is a disease in which tumor cells occlude, or block the flow of blood in a patient's blood vessels. In this case, the blockages occurred in Ginisi's brain. IVL responds well to chemotherapy. Once chemotherapy was administered, the cancer receded.
At trial, the plaintiff offered expert testimony from Dr. David Mark Yousem, director of neuroradiology at the Johns Hopkins Hospital. Yousem testified that Gupta's report indicated that her “Initial Interpretation” was “bilateral occipital infarcts [strokes] left greater than right.” Yousem opined that this was an unusual presentation for a stroke because it involved clots in two different blood vessels, on both sides of the brain. He also testified, “It's very important to try to tell what the age of a stroke is.... [W]hen you have a stroke that's recent, then what you want to do is to prevent additional strokes from occurring. You want to make sure that you protect the brain that might be currently at risk of additional strokes. Because although, ... right now the patient may just have dizziness or lightheadedness, you don't want him to have a massive stroke, you know, within the next six hours that takes out their speech or takes out their memory and they can no longer function in a proper way.”
Yousem was also a vice-chair of the department of radiology and a past president of the American Society of Neuroradiology.
Significantly, Yousem also testified that “the age of an infarct is important information to report to an e[mergency] d[epartment] physician or physician's assistant.” He opined that, in 2004, “there should [have been] information provided as far as the age of a stroke to provide sound medical practice in the emergency room setting.” Examining the CT scan of Ginisi's brain, Yousem opined, “So when I see swelling, as in this case, we know that this is within, usually within like ... a week, and it could be as recent as eight to twelve hours. So this is something that is an emergency.” In addition, he saw no atrophy in the January 23 CT scan. If atrophy had been present, it would have indicated that the strokes were “in the two-to-four week age range.” Finally, Yousem described the strokes as “acute to subacute” and opined that it was “absolutely” important for a radiologist to report that fact to emergency department personnel because “[h]ow the patient is handled in the emergency room and thereafter is different depending upon whether a stroke is acute or subacute versus a chronic stroke that may be weeks to months old.” In Yousem's view, the fact that the CT scan showed “acute to subacute infarcts” was “not a close call.... You know, that's a relatively basic finding.” Finally, Yousem testified that, if the radiologist was unsure about the age of the stroke, the radiologist should have, even in 2004, obtained an MRI or consulted with the attending radiologist. His recommendation would have been to do that, and he testified that Gupta breached the standard of care expected of the average qualified radiologist in Massachusetts in 2004.
Yousem also compared the CT scan of Ginisi's brain on January 23 with an MRI taken on January 30, noting that “Mr. Ginisi's brain [continued] to get damaged in that interval between the 23rd and the 30th.” The image from an MRI “map” on February 19 depicted “new injuries, bilateral injuries, injuries in multiple blood vessel distributions as well as old injuries, again suggesting that there is continued activity of the disease. Things [were] still happening in his brain recently that can affect his brain function.”
Finally, Yousem compared the January 30 images with images taken on February 19, noting, “[T]here's more damage that's happening to this patient's brain tissue in that 19–day gap.” His comparison of an image from February 8 to one taken on February 25 also showed progressive brain injury to Ginisi's brain.
The plaintiff also called Dr. Henry S. Friedman, who was deputy director of the brain tumor center within Duke Medical Center, which is “responsible for the care of patients with benign and malignant brain and spinal cord tumors.” Dr. Friedman testified that it was “malpractice” to transfer a cancer patient to a treating hospital without the patient's pathology specimens. Dr. Friedman also testified that, at the time of trial, Ginisi “require[d] 24–hour nursing supervision, whether in an institutional setting or ... a modified home setting.” However, Dr. Friedman testified that had chemotherapy been initiated between February 6 and February 9, 2004, Ginisi would not have needed twenty-four hour care “[b]ecause he would have been better, much better.”
The question, on cross-examination, was, “And so when Saint Vincent Hospital has a policy regarding sending out slides that involves keeping those slides and not sending them with a patient when the patient, for example, is being transferred to Mass General Hospital, that's certainly an appropriate policy, isn't it?” Dr. Friedman's answer was, “In my opinion, that's malpractice.”
In response to the special question: “Was the defendant [hospital], by and through the actions of its agents, servants, or employees, negligent with respect to the care and treatment of Joseph Ginisi?” the jury responded, “Yes.” In a follow-up question listing the names of certain hospital personnel, the jury checked “no” next to each individual name listed, including Dr. Preeti Gupta. However, the jury checked “yes” next to “Unnamed agents, servants or employees.” Judgment thereafter entered in favor of the plaintiff, and the hospital filed a motion for JNOV on the basis of insufficient evidence, or, in the alternative, for a new trial. As noted, the judge denied the motion. The hospital now appeals from the denial of the motion, and from the second amended judgment, which awarded the plaintiff $1,894,160 on the jury verdict (including $500,000 for loss of consortium), plus $330,884 in interest.
Discussion. a. Special questions. On appeal, the hospital first argues that the judge erred in submitting special questions to the jury permitting them to find negligent any “unnamed agents, servants or employees” of the hospital. In the defendant's view, the judge should have accepted its counsel's suggestion, offered at the charge conference, to connect the negligence of unnamed agents or employees only to the timing of the March, 2004, transfer of Ginisi's pathology specimens to MGH. Because the judge failed to narrow the issue to that act (or omission), the hospital urges that the judgment be vacated, arguing that the theory of liability underlying the verdict is unknown, and potentially legally untenable. The plaintiff counters that the hospital waived the issue by failing to object to the form of the special questions submitted to the jury. We agree.
At the charge conference, the judge, sua sponte, raised the issue of a general or specific verdict, and discussed with the parties' counsel their proposed special questions. The hospital's submission included specific questions about an unknown employee's failure timely to transfer Ginisi's pathology specimens on March 2. At the conference, the judge stated that he had added the term “others” in his draft of the special questions, in addition to the listed individual employees, in response to the hospital's request. The hospital's counsel responded, “I think that your instruction ought to define ‘Other,’ because it's just so broad.” When the judge then indicated that he was inclined to delete “other,” the hospital's counsel responded, “[I]f we took out ‘Other,’ could we insert a question which asked the jury to define what percentage of the total damages they were attributing to the slide, the negligence of anyone on March 2nd? Or we could leave ‘Other’ in there and simply connect that with March 2nd.” The judge, however, declined, stating, “I am not going to get that specific on a verdict slip,” and declared his intention to delete the term “other.” Defense counsel assented, but plaintiff's counsel specifically objected. After discussion of the time frame to be specified in the instructions, the judge ruled that “rather than ‘Other,’ I'm going to use the words ‘Unnamed agents, servants, or employees.” The hospital's counsel did not lodge an objection at that point, and the conference continued.
On the subject of the time period to be referenced on the verdict slip, as to when the alleged acts of negligence occurred, the judge ruled that the question would simply reference “2004,” in order to encompass alleged negligent acts occurring in both January and March. There was no objection, although this was contrary to the judge's initial draft instruction, with which the hospital had agreed, specifying “January, 2004.”
All changes made by the judge to the special questions were permissible, as “[t]he nature, scope, and form of special questions submitted to a jury pursuant to Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974), are matters within the discretion of the trial judge.” Blauvelt v. AFSCME Council 93, Local 1703, 74 Mass.App.Ct. 794, 799–800 (2009). Where there is a lack of objection to special questions “before submitted, when returned, or prior to discharge of the jury,” and an objection to the jury instructions or special jury questions is not raised at trial, the issue is waived. Scott v. Boston Hous. Authy., 56 Mass.App.Ct. 287, 297 (2002) (Berry, J., concurring), citing Neagle v. Massachusetts Bay Transp. Authy ., 45 Mass.App.Ct. 345, 348 (1998) (“Pursuant to Mass.R.Civ.P. 49[a], this failure [to object to the special question] resulted in a waiver of the plaintiff's rights ... [including the right] to raise the issue on appeal”). See Fecteau Benefits Group, Inc. v. Knox, 72 Mass.App.Ct. 204, 208 n. 12 (2008) (“[B]ecause Knox did not object to the verdict form below, his objection on appeal is waived”). See also Shafnacker v. Raymond James & Assocs., 425 Mass. 724, 733 (1997).
Here, although the hospital's counsel raised the issue as to the wording of the special questions before the judge and advocated for her position, she failed to object when the judge made his ruling. She likewise assented to the special question form when asked following the instructions to the jury. We are therefore persuaded that the issue was waived.
The hospital cites Shantigar Foundation v. Bear Mountain Builders, 441 Mass. 131, 136 (2004), in support of its position that the issue was preserved below. In that case, however, the judge expressly noted the defendant's objection to the issue at hand. The judge made no equivalent acknowledgement in the present case.
b. Motion for JNOV. The hospital next argues that its motion for JNOV should have been allowed, on the basis that there was insufficient evidence before the jury on each of the potential legal theories supporting the verdict. The central issue in the case was whether the delay in properly diagnosing the cause of Ginisi's strokes and obtaining treatment for his cancer was both negligent and responsible for his gravely deteriorated condition. The evidence clearly supports the jury's conclusion that it was. The next issue was whether the delay was properly attributed to the hospital. A key element of that delay was the report given by Dr. Gupta, who was at that time a resident “under training” and giving “preliminary readings.” Despite the fact that the jury found that Gupta herself was not negligent, there was evidence that she acted according to accepted practices at the hospital, where her training on reporting was provided by twelve different people with different practices. Such testimony supported the jury's verdict against unnamed persons affiliated with the hospital.
There was also evidence that the delayed transfer of Ginisi's pathology specimens contributed further to his deterioration. The hospital first argues that any delay caused by the failure to transfer the pathology specimens along with the patient was inconsequential, as the damage to Ginisi's brain had already been done, and no further substantial injury was possible at that point. However, the plaintiff presented contrary evidence from Dr. Yousem and also from Dr. Friedman, who testified, “[T]he further you go out before you start therapy, ... more blood vessels occlude, more brain is damaged. It just continues and continues until you ultimately start therapy.” “Our task in review is to consider whether any evidence, considered in the light most favorable to the plaintiff, ... permits a reasonable inference in favor of the plaintiff on the [count] for which the jury returned [a] favorable finding [ ].... We do not weigh the evidence or consider the credibility of witnesses.” Conway v. Smerling, 37 Mass.App.Ct. 1, 3 (1994), citing Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 254 (1983). We are satisfied that there was sufficient evidence to support the jury's finding.
Finally, the hospital argues that the plaintiff failed to prove that the delay in transferring the slides caused the damage, claiming that Ginisi would not have been treated any sooner if the specimens had arrived immediately because the results of a skin biopsy were required before chemotherapy could begin. We have reviewed the medical record entries cited, and conclude that they are, at best, unclear as to whether the skin biopsy results were required for the start of chemotherapy. Again, we defer to the jury as the proper finders of fact, particularly in cases of causation and negligence. See Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass.App.Ct. 779, 785 (1992).
In sum, the jury had before them sufficient evidence to support a finding that unnamed agents, servants, or employees of the hospital were responsible for Ginisi's negligent treatment in the hospital emergency department on January 23, 2004, and, later, for the negligent delay in transferring his pathology specimens to MGH.
c. Damages. The hospital finally argues that the few days' delay in the start of treatment caused by the failure to transfer the specimens could not possibly justify the almost $2 million judgment, as Ginisi's condition had already significantly deteriorated by that point. In this, the hospital fails to acknowledge its role in Ginisi's delayed diagnosis. It is well established that “the general rule applicable to damages in personal injury cases is that ‘a wrongdoer is responsible for the combined effects of the harmful results of his wrongful act and a preexisting disease or condition.’ “ Baudanza v. Comcast of Mass. I, Inc., 454 Mass. 622, 630 n. 8 (2009), quoting from Varelakis v. Etterman, 4 Mass.App.Ct. 841, 841 (1976), and citing McGrath v. G & P Thread Corp., 353 Mass. 60, 63 (1967); Higgins v. Delta Elevator Serv. Corp., 45 Mass.App.Ct. 643, 649 & n. 8 (1998). We see no reason to depart from that rule here.
Second amended judgment affirmed.
Order denying motion for judgment notwithstanding the verdict or new trial affirmed.