Opinion
11-P-1908
12-10-2012
MICHAEL P. BUCKLEY & another v. CAROL NARANJO & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this action for medical malpractice, the plaintiffs appeal from a judgment in favor of the defendants. The plaintiffs maintain that the trial judge erred in (1) allowing the defendants' motion in limine to exclude the proposed expert testimony on the issue of informed consent and (2) entering a directed verdict in favor of the defendants on that claim. We discern no error and affirm for substantially the reasons set forth in the defendants' brief at pages twenty through thirty-eight.
The jury entered a verdict in favor of the defendants on the accompanying claim of negligence in performance of the surgery. The plaintiffs do not appeal from that portion of the judgment.
1. Exclusion of expert testimony. 'The decision to exclude expert testimony rests in the broad discretion of the judge and will not be disturbed unless the exercise of that discretion constitutes an abuse of discretion or other error of law.' Palandjian v. Foster, 446 Mass. 100, 104 (2006). See Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 485 (2000). The judge did not abuse his discretion in excluding the proposed expert testimony on the issue of informed consent for the reason, if no other, that the plaintiffs utterly failed to comply with the rules of civil procedure requiring disclosure of expert information. See Mass.R.Civ.P. 26(e)(1)(B), 365 Mass. 776 (1974) ('A party is under a duty seasonably to supplement his response with respect to any question directly addressed to . . . the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony'). At no point in the five years prior to commencement of trial did the plaintiffs supplement their answers to interrogatories with the required expert witness information on the informed consent claim. Indeed, the plaintiffs did not inquire of their proposed expert on the subject of informed consent, Lynn Whelchel, M.D., until two weeks prior to trial. Even then, they failed to supplement their answers to interrogatories.
Until trial commenced, the plaintiffs were of the erroneous view that expert testimony on the issue was not required.
Expert testimony is required in an informed consent claim with regard to the risks the average qualified physician should know, the severity of those risks, and the likelihood or probability of those risks materializing. See Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 155-156 (1982); Precourt v. Frederick, 395 Mass. 689, 694-695 (1985). Viewed in context, the judge's decision to exclude the proffered expert testimony can hardly be deemed an abuse of discretion. '[T]he defendant[s] [are] entitled to know in advance the identity of the experts the plaintiff[s] proposed to call, the subject on which each would testify, and the substance of the facts and opinions to which each was expected to testify.' Kearns v. Ellis, 18 Mass. App. Ct. 923, 924-925 (1984). See Shaw v. Rodman Ford Truck Center, Inc., 19 Mass. App. Ct. 709, 713 (1985). Not having received notice prior to trial of the plaintiffs' proposed expert on informed consent, the specific risk or complication that Dr. Naranjo was alleged not to have disclosed and the likelihood of its materializing, and the manner in which it materialized in plaintiff Michael P. Buckley's (Michael) case, the defendants were left with no time to consult the literature and their own experts, and to prepare for cross-examination.
Moreover, Dr. Welchel's proffered expert testimony on informed consent fell far short of the mark as it essentially duplicated his opinion regarding Dr. Naranjo's alleged deviations from the standard of care in performance of the surgery. At bottom, Dr. Welchel's opinion was not that Michael should have been warned of a foreseeable untoward material risk of even a well-performed surgery, but that he should have been warned that Dr. Naranjo would negligently perform the surgery by making the hole in the prolene mesh too small. See Aceto v. Dougherty, 415 Mass. 654, 660 (1993).
2. The directed verdict. Informed consent requires that a physician disclose 'all significant medical information . . . material to an intelligent decision by the patient whether to undergo a proposed procedure.' Harnish v. Children's Hosp. Med. Center, supra at 155. 'The materiality of information about a potential injury is a function not only of the severity of the injury, but also of the likelihood that it will occur.' Precourt v. Frederick, supra at 694. Only after expert testimony is adduced regarding the severity and probability of the risk may the lay jury determine the question of materiality without the aid of an expert. See id. at 695. Because Michael failed to present sufficient expert evidence on the issue of informed consent, the judge did not err in directing a verdict in favor of the defendants on that theory of liability.
Dr. Whelchel did not opine that Michael's injury was a risk that was likely to occur even if the surgery had been performed skillfully, nor did he quantify the probability of the risk of spermatic chord constriction in such a situation. Indeed, Dr. Whelchel's testimony amounted to no more than an opinion that Michael's injury was the result of negligence in the performance of the surgery. The unskillful performance of a surgery is not an untoward 'risk' material to a decision on informed consent. See Aceto v. Dougherty, 415 Mass. 654, 660 (1993). Accordingly, the judge properly directed a verdict in favor of the defendants.
Judgment affirmed.
By the Court (Grasso, Vuono & Milkey, JJ.),