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holding that where plaintiff presented no expert testimony concerning the applicable standard of care, there was insufficient evidence from which a reasonable jury could conclude that the defendant had committed medical malpractice
Summary of this case from Wittkowski v. LevineOpinion
No. 12–P–699.
2013-02-28
Lauren RACOWSKY v. Peter A. BURKE & another.
By the Court (CYPHER, RUBIN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals after the allowance of the defendants' motion for directed verdict in this medical malpractice action. We affirm, for essentially the reasons given by the trial judge.
Background. The plaintiff was admitted to, and treated at, defendant Boston Medical Center Corporation (BMC) after she was seriously injured in an automobile accident. Defendant Dr. Peter A. Burke was the trauma surgeon in charge of her care upon admission, and was also her attending physician throughout the duration of her hospitalization. A series of CAT scans were taken almost immediately, and Dr. Burke reviewed the images with a radiologist “in real time,” as was his ordinary practice. Dr. Burke's testimony at trial was that the primary purpose of this review was to determine if there were any life-threatening injuries. He also testified that neither he nor the radiologist observed that the plaintiff had a fracture in her hip. Unfortunately, as reflected in the final radiology report (which was dated two days after her discharge) the plaintiff in fact had suffered a hip fracture, about which she was neither told nor for which she was treated before she was discharged. There was no evidence that Dr. Burke saw this report, or an earlier preliminary radiology report, or that he otherwise knew or should have known about its contents.
This report noted a “cortical defect along the anterior aspect of the right sacrum with a buckling deformity, which likely reflects a fracture.”
The hip fracture was ultimately discovered when the plaintiff returned to BMC after having suffered pain and developing a limp while walking. Corrective surgery was required, including the use of an external fixator. The medical record indicates a notation by Dr. Paul Tornetta that “a locked symphyseal overlap with a right fracture allowing for internal rotation of the right hemipelvis,” and that it appeared “that the displacement has occurred over time with the patient walking.”
Discussion. Review of a decision allowing a motion for directed verdict “requires us to construe the evidence in the light most favorable to the nonmoving party and disregard that favorable to the moving party. Cimino v. Milford Keg, Inc., 385 Mass. 323, 326 (1982). In other words, ‘the standard to be employed is whether “the evidence, construed against the moving party, justif[ies] a verdict against him.’ “ Bonin v. Chestnut Hill Towers Realty Corp ., 392 Mass. 58, 59 (1984), quoting D'Annolfo v. Stoneham Hous. Auth., [375 Mass. 650, 657 (1978) ]. Our duty in this regard is to evaluate 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 [nonmovant].’ Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 121 (1992), quoting Dobos v. Driscoll, 404 Mass. 634, 656, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989).” O'Brien v. Pearson, 449 Mass. 377, 383 (2007).
“To prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant physician breached that standard, and that this breach caused the patient's harm.” Palandjian v. Foster, 446 Mass. 100, 104 (2006). The plaintiff presented no expert testimony concerning the applicable standard of care and it was outside the competence of the jury to know without such expert testimony what the applicable standard of care might be for a trauma surgeon in 2003. See id. at 112 (a “physician is held to the ‘standard of care and skill of the average member of the medical profession practicing his specialty’ at the time of the alleged negligence ” [citation omitted] ). , There was no evidence from which a jury could have concluded that Dr. Burke did not act in accordance with the applicable standard of care when he reviewed the CAT scan images in real time with a radiologist, or when he deferred to the radiologist's interpretation of them. There was no evidence that the standard of care required Dr. Burke (a trauma surgeon) to review radiology reports as they were later generated, including after the patient's discharge.
The plaintiff also argues that because Dr. Burke testified about his own personal standard of care (which essentially was to do the best for his patients), the jury could conclude that he had violated it. The plaintiff provides no legal authority for this argument. Moreover, the applicable standard is an objective one (as noted in the body above), not a subjective one. Finally, even were we to accept the idea that Dr. Burke's personal standard of care was the appropriate standard of care to use, there was no evidence that he breached it. Dr. Burke testified that his customary and usual practice was to review CAT scans in real time with the radiologist and to defer to the latter's
interpretation. He testified that it was not his practice to read the later radiology reports.
Because the claim against BMC was based entirely on a theory of vicarious liability for the actions of Dr. Burke, it was correctly dismissed for the same reason.
The plaintiff's additional arguments (none of which are supported by legal authorities, see Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975] ), merit little discussion. As to her claim that there were too many sidebar conferences, the plaintiff did not object or seek a curative instruction or a mistrial. This issue is therefore waived. See, e.g., Weiner v. Commerce Ins. Co., 78 Mass.App.Ct. 563, 568 (2011). More fundamentally, our review of the transcripts convinces us that most of the sidebars were required because of the questioning by plaintiff's counsel. The plaintiff's argument that the judge was excessively restrictive “of defendant-associated documentation” is general, conclusory, and without sufficient reference to the record. To the extent the argument is based on the judge's ruling restricting questioning about preliminary versions of some medical records, there was no error. The documents were not part of the certified record in evidence, were not authenticated, and no foundation was laid for their admission. Moreover, the plaintiff did not preserve any objection to the judge's rulings. Finally, the plaintiff's argument that she was prevented from calling her proposed expert is flatly belied by the transcript. Plaintiff's counsel made clear when he rested that he was not seeking to call any expert or further witnesses.
The plaintiff's related claim that the judge's refusal to enforce her subpoenas against Drs. Tornetta and Mark S. Vrahas resulted in their failure to appear and to fill up the time until such time as Dr. Shankman could appear fails because plaintiff's counsel did not ask the judge to compel the appearance of Drs. Tornetta and Vrahas, stating that with Dr. Tornetta's notes in evidence, he would not press their subpoenas and was prepared to rest.
Judgment affirmed.