Opinion
21-P-435
06-08-2022
FREDERICK GRAHAM v. IVAN LESYUK & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a medical malpractice trial in the Superior Court, a jury found that defendant Dr. Ivan Lesyuk, an anesthesiologist, was not negligent in his care and treatment of plaintiff Frederick Graham. On appeal, Graham argues that the judge's instructions to the jury were erroneous. First, Graham claims that the judge's references to a physician's "range of judgment" and "mere errors of judgment" improperly inserted a subjective element into the instructions. Second, Graham claims error in the denial of his request to instruct the jury that violation of a safety standard is evidence of negligence. We affirm.
The jury likewise found that Dr. Lesyuk's employer, Lawrence Anesthesia Services, LLC, was not variously liable for the alleged negligence.
1. Background.
We summarize the facts the jury could have found, reserving some facts for our discussion of the issues. On November 5, 2013, Graham complained to cardiologist Richard A. Goldman that he was experiencing shortness of breath and heart palpitations. Dr. Goldman diagnosed Graham with an atrial flutter and instructed him to go to the emergency department of Lawrence General Hospital. The following day, Dr. Goldman scheduled two related procedures to treat Graham's atrial flutter: a transesophageal echocardiogram (TEE) and a cardioversion.
A TEE is an ultrasound examination of the heart. It involves placing a probe through the patient's mouth and into the esophagus to image the heart and detect blood clotting.
Cardioversion is a procedure that restores normal heart rhythm in people with certain types of arrhythmias.
Dr. Lesyuk, who worked in the hospital's endoscopy unit, was assigned to provide anesthesia for these procedures. He began by conducting a pre-anesthesia evaluation, which included reviewing Graham's medical records and assessing various risk factors. Based on his evaluation, Dr. Lesyuk concluded that Graham was an appropriate patient for anesthesia and devised a treatment plan. He opted to provide monitored anesthesia under moderate to deep sedation rather than general anesthesia, which he believed would be too dangerous for Graham. The TEE was performed in a procedure room rather than the hospital's main operating room. The procedure room, unlike the main operating room, was not equipped with a capnography machine to measure a patient's exhaled carbon dioxide. Dr. Lesyuk was confident that he had "all the equipment necessary to provide high quality, safe anesthesia care in the procedure room."
Dr. Lesyuk sedated Graham using propofol and informed Dr. Goldman that he could begin the TEE. He watched Graham's chest rise and fall with each breath, while a nearby monitor tracked Graham's vital signs including his blood oxygen level. Shortly after the procedure began, Graham's blood oxygen declined rapidly, his breathing slowed, and eventually stopped. Dr. Goldman terminated the procedure. Dr. Lesyuk was able to elevate Graham's blood oxygen to a normal level by using a bag valve mask to manually ventilate Graham.
Around the same time, Graham's heart rate declined significantly until no pulse could be detected, an indication that blood had stopped circulating through his body. Graham went into cardiorespiratory arrest. An emergency response protocol was initiated, and resuscitation efforts began. Dr. Lesyuk administered atropine, a medication used to increase heart rate, and a cardiac nurse began chest compressions. Graham was intubated and placed on a ventilator, which stabilized his oxygen levels. His pulse resumed. But Graham had suffered significant brain damage from being without oxygen for several minutes.
At trial Graham claimed that Dr. Lesyuk was negligent in monitoring Graham's breathing during the procedure. He argued that the standard of care owed by Dr. Lesyuk was defined by § 3.2.4 of the American Society of Anesthesiologists' (ASA) Standards for Basic Anesthetic Monitoring, which states:
"During moderate or deep sedation the adequacy of ventilation shall be evaluated by continual observation of qualitative clinical signs and monitoring for the presence of exhaled carbon dioxide unless precluded or invalidated by the nature of the patient, procedure, or equipment."
According to Graham, § 3.2.4 required Dr. Lesyuk to use a capnography machine to monitor for the presence of exhaled carbon dioxide. He argued that Dr. Lesyuk would have been able to intervene before serious brain injury had he used a capnography machine.
The jury found that Dr. Lesyuk was not negligent in his care and treatment of Graham and judgment entered in Dr. Lesyuk's favor on November 14, 2019. Graham filed a motion for new trial on December 13, 2019, claiming error in the jury instructions and the admission of certain evidence. Graham also claimed that the jury verdict was against the weight of the evidence. The judge denied the motion in a written decision dated December 16, 2019. Graham timely noticed an appeal of the final judgment and the denial of his motion for new trial.
The jury returned a verdict against Dr. Goldman for failure to obtain informed consent and awarded $33.28 million in damages. The damage award was subject to a "high-low" agreement between the parties. The jury did not reach a verdict on Graham's negligence claim against Dr. Goldman. The judgment against Dr. Goldman is not part of this appeal.
Graham makes no argument in his brief regarding the denial of his motion a new trial. Accordingly, we do not address it.
2. Discussion.
a. Instructions on range of medical judgment.
Graham argues that it was error to instruct the jury that a doctor is not liable for "mere errors in judgment" and that doctors are "entitled to a range of medical judgment that falls within the standard of care." He argues these instructions improperly suggested to the jury that doctors cannot be negligent for errors made in good faith. We first address Dr. Lesyuk's contention that Graham waived these arguments because he failed to make specific objections at trial.
To preserve a challenge to a jury instruction, a party must "object[] [to the instruction] before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). While it is the best practice to renew the objection with specificity after the jury is instructed, the Supreme Judicial Court has "reject[ed] [a] hard and fast approach . . . [that] requires . . . that all relevant events [] occur after the charge." Flood v. Southland Corp., 416 Mass. 62, 67 (1993). "If a party requests an instruction, the judge does not give it, the party objects after the charge was given and explains the significance of the request, and the judge acknowledges an understanding of the issue but nevertheless declines to give the instruction, the requirements of rule 51 are unquestionably satisfied." Id. at 66.
Here, Graham's counsel filed a written objection to the judge's proposed instructions, arguing that the proposed language regarding a physician's "reliance on judgment" and the phrase "mere error of judgment" were contrary to Massachusetts law. His objections at the charge conference were less precise. After lengthy discussion, plaintiff's counsel seemed to agree that it was appropriate to "instruct the jury that a physician is entitled to a range of judgment so long as it's within the standard of care." Following the jury charge, Graham renewed his objection and offered to "articulate absolutely specifically" his reasoning. The judge responded:
"I don't think anything further is required. You've made your point that references ... to range of judgment should not be here. For the record, what I said is range of judgment should be there as long as it is made clear that judgment must comply with the applicable standard of care. "
While Graham's argument at the charge conference could have been more precise, we conclude that the objections before and after the charge, considered together, were sufficient to put the judge on notice of Graham's argument. The judge's comment confirmed that he understood that Graham was objecting to any reference to a physician's range of judgment. We conclude that in these circumstances, the issue was adequately preserved for appellate review.
Turning to the merits, "[w]e review objections to jury instructions to determine if there was any error, and, if so, whether the error affected the substantial rights of the objecting party" (quotation and citation omitted). Governo Law Firm LLC v. Bergeron, 487 Mass. 188, 194 (2021). "A trial judge has wide latitude in framing the language to be used in jury instructions as long as the instructions adequately explain the applicable law" (quotation and citation omitted). Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009). "[A] good objection will lie only if a critical issue was not dealt with at all or was dealt with erroneously as a matter of law." Torre v. Harris-Seybold Co., 9 Mass.App.Ct. 660, 679 (1980) . In examining whether an instruction adequately explains the applicable law, we view the instruction as whole. See Main v. R.J. Reynolds Tobacco Co., 100 Mass.App.Ct. 827, 834 (2022).
"In a medical malpractice action, '[o]ne holding himself out as a specialist [is] held to the standard of care and skill of the average member of the profession practi[c]ing the specialty, taking into account the advances in the profession." Paiva v. Kaplan, 99 Mass.App.Ct. 645, 649 (2021), quoting Brune v. Belinkoff, 354 Mass. 102, 109 (1968). The duty of care owed by a doctor is measured by an objective standard. See Grassis v. Retik, 25 Mass.App.Ct. 595, 602-603 (1988). "Because the standard of care is based on the care that the average qualified physician would provide in similar circumstances, the actions that a particular physician, no matter how skilled, would have taken are not determinative" (quotation and citation omitted). Paiva, supra.
Massachusetts law recognizes that in some instances "medical professionals need to make judgment calls between various acceptable courses of actions" and thus the common law does not impose liability "unless those judgment calls fall outside the standard of care." Paiva, 99 Mass.App.Ct. at 649-650, 652, citing Riggs v. Christie, 342 Mass. 402, 405-406 (1961). "[P]roperly formulated, [an instruction on professional judgment] focuses the jury's attention on the standard of care, rather than the particular results in a case." Paiva, supra at 652.
In Paiva, we reviewed instructions virtually identical to those given in this case, which were drawn from § 4.3.2 of the Massachusetts Superior Court Civil Practice Jury Instructions. We observed that other jurisdictions permit a "range of judgment" instruction only where "the trial evidence in fact shows a range of acceptable treatment options within the standard of care." Id. at 653. The Massachusetts model instructions have now been modified to clarify that point. Thus, neither Paiva nor the new model instruction eliminate the range of medical judgment instruction.
The current model instructions on range of medical judgment, updated May 25, 2021, after the trial in this case, state:
"Sometimes more than one course of action or conclusion may be consistent with the required standard of care. If so, then a doctor [provider] may exercise his or her best judgment as to the appropriate steps to take, and doing so is not negligence. However, a doctor is negligent and may be held liable for an error of judgment if that judgment represents a departure from the standard of care.
"Evidence that another doctor might have treated the patient differently is not, by itself, evidence that [the defendant] was negligent, because doctors are entitled to act within a range of medical judgment -- as long as the judgment falls within the standard of care."Model Jury Instructions on Medical Malpractice 5 (2021).
Here, the jury heard evidence that there were alternative methods of monitoring a patient's breathing while under anesthesia. Specifically, the jury heard testimony that there was a course of treatment within the standard of care that did not involve the use of a capnography machine to monitor Graham's breathing. Dr. Matthew Haverkamp, the defendant's expert anesthesiologist, testified that Dr. Lesyuk's decision to monitor Graham's breathing with an "EKG," a blood pressure cuff, oxygen saturation monitoring, and direct physical observation was a course of treatment that was within the standard of care. Because there was evidence of alternative methods of monitoring Graham's breathing, there was no error in instructing the jury that "[d]octors are allowed a range in the reasonable exercise of professional judgment."
Graham emphasizes that in Paiva, we expressed concern regarding use of the phrase "mere errors in judgment," noting that other jurisdictions have held that such a formulation "permits too much." See Paiva, 99 Mass.App.Ct. at 652-653, citing Riggins v. Mauriello, 603 A.2d 827, 831 (Del. 1992). Although the phrase has been deleted from the new model instruction, we see no error in its use in this case because the judge repeatedly focused the jury's attention on the standard of care. The judge instructed that:
We did not go so far as to rule that such an instruction was error, concluding that the issue had not been preserved. Paiva, 99 Mass.App.Ct. at 654.
"Doctors are allowed a range in the reasonable exercise of professional judgment, and will not be liable for mere errors in judgment -- so long as the judgment does not represent a departure from the requirements of accepted medical practice, resulting in a failure to do something that accepted medical practice requires or in doing something that should not be done under the accepted standards. In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the applicable standard of care."
Here, as in Paiva, when the judge referenced a physician's use of judgment, he referred back to the accepted standard of care. Considered in context, there was no error in the judge's reference to "mere errors in judgment."
b. Instruction on ASA standard.
Graham argues that the judge erred in refusing to instruct the jury that a violation of the ASA standard is evidence of negligence. We disagree with Dr. Lesyuk's argument that Graham failed to properly preserve this issue at trial. Graham requested the instruction at the charge conference and objected to the judge's decision not to give it. While it would have been a better practice for counsel to renew the objection with specificity at the end of the charge, his failure to do so was not fatal where the record reflects that the judge was on notice of the issue. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 751-752 (2000); Commonwealth v. Grenier, 415 Mass. 680, 686 n.8 (1993).
As to the merits of Graham's argument regarding the requested ASA instruction, "[a] judge is not required 'to instruct the jury in the terms of a requested instruction --even if it is correct as matter of law and applicable to the pleadings and the evidence -- if the subject matter thereof is dealt with adequately in the charge.'" Jacobs v. Pine Manor College, 399 Mass. 411, 414-415 (1987), quoting Campbell v. Shea, 332 Mass. 422, 425 (1955). Here, the judge instructed the jury:
"You must determine and give substance to the applicable standard of care based upon expert medical evidence presented to you during the trial of this case. And in this connection, you may consider the various sources of standards upon which the expert or experts relied for their opinions."
This instruction correctly informed the jury that they could consider standards from various sources in determining the standard of care, one of which was the ASA standard that the defendant's expert relied upon in forming his opinion. See Doull v. Foster, 487 Mass. 1, 20-21 (2021). We conclude that although the judge did not use the language that Graham requested, the instruction given adequately informed the jury that the ASA standard was a source that they could consider, a point that Graham's counsel repeated in argument. We see no error in the instruction given and no abuse of discretion in the denial of Graham's requested instruction.
We have carefully reviewed the jury instructions in their entirety and see no merit in Graham's contention that they were overbroad and confusing.
Judgment affirmed.
The panelists are listed in order of seniority.