Opinion
16-P-738
08-25-2017
Aaron Zachary REED v. Jane W. NEWBURGER & Others.
The plaintiff, Aaron Zachary Reed, appeals from a judgment entered following an order allowing the defendants' motions for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). We affirm.
Background. On December 1, 2010, the plaintiff, then fifteen years old, underwent a nuclear stress test at Children's Hospital Boston. After he finished his exercise on the treadmill, the plaintiff experienced what he alleged to be a "cardiac event" and what the defendant Mark Alexander, a pediatric cardiologist, diagnosed as a "sinus bradycardia, post exercise cardio-inhibitory syncopal event."
The plaintiff previously filed suit against his health care providers in Louisiana in connection with a stress test he underwent in 2009 that caused him to experience a vasovagal syncope response. His complaint in the present case alleges, among other things, that Alexander conspired with the plaintiff's Louisiana health care providers.
Discussion. 1. Summary judgment. In his complaint, the plaintiff alleged, in part, that defendant Kathleen Solly, a licensed exercise physiologist, did not alert appropriate personnel to his "cardiac event" and did not initiate basic life support techniques; that Alexander inaccurately diagnosed him with syncope; and that Jane Newburger, a pediatric cardiologist, did not follow the appropriate standards in treating his "cardiac event." He argues on appeal that the affidavits of Thomas J. Berger, a cardiac surgeon, and Kenneth Salzer, a paramedic, were sufficient to withstand the defendants' motions for summary judgment. We disagree.
In his brief, the plaintiff points to his pro se status. However, it is well established that a pro se party is held to the same standard as one represented by counsel. Maza v. Commonwealth, 423 Mass. 1006 (1996).
"[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
"To prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant [health care provider] breached that standard, and that this breach caused the patient's harm." Palandjian v. Foster, 446 Mass. 100, 104 (2006). The standard of care is "what the average qualified [health care provider] would do in a particular situation." Id. at 105.
"In determining whether an expert is qualified to testify regarding the proper standard of care, [t]he crucial issue is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony." Id. at 106 (quotations omitted). As to the paramedic, Salzer, he is not qualified to testify regarding the actions of the two pediatric cardiologists, and it is doubtful, based on the record before us, that he is qualified to testify concerning the actions of a licensed exercise physiologist. See ibid.
Further, the affidavits of Salzer and Berger, presented by the plaintiff, suffer from other fatal deficiencies. The affidavits fail to indicate whether the experts are familiar with the 2010 standards of care for a pediatric cardiologist and an exercise physiologist and do not make any mention of the individual defendants in this case. In addition, the experts fail to opine that the defendants violated the standards of care applicable to them, do not identify the plaintiff's injuries and damages, and do not state that the defendants caused the plaintiff's harm. See Benson v. Massachusetts Gen. Hosp., 49 Mass. App. Ct. 530, 533-534 (2000).
We also reject the plaintiff's argument that no expert testimony was required in this case. Expert testimony is generally required to prove medical malpractice. See Palandjian v. Foster, supra at 105-106. "It is only in exceptional cases that a jury ... may without the aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of the special duty which the law imposes...." Id. at 106 (quotations omitted). Here, the plaintiff was a patient with complex cardiac issues and the defendants' alleged negligence was not so obvious that it lay within the common knowledge of the jurors. See Haggerty v. McCarthy, 344 Mass. 136, 139-140 (1962) ; Anderson v. Attar, 65 Mass. App. Ct. 910, 911 (2006). Moreover, the jurors would not be able to determine, without expert opinion, what damages, if any, were caused by the defendants.
The plaintiff makes a one-sentence reference to "scholarly articles referenced in [his] oppositions to summary judgment and in his offer of proof" to support his claim that expert testimony was not required. However, this does not constitute reasoned appellate argument supported by relevant legal authorities. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass 921 (1975).
We also disagree with the plaintiff's claim that summary judgment was improper because discovery "was just getting under way." As the record reflects, the plaintiff did not file an affidavit pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), in response to the defendants' motions for summary judgment. See Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 107-108 (2008).
2. Protective orders. The plaintiff argues that the judge erred in allowing the defendants' motions for protective orders in response to his service of interrogatories on them. We disagree.
"[T]he conduct and scope of discovery and protective orders are issues within the sound discretion of the motion or trial judge." Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 159 (1999). Here, the judge allowed the defendants' motions for protective orders, reasoning that pursuant to Superior Court Rule 30, the interrogatories were to be served within one year of the filing of the complaint, which would be December 29, 2014; that this period had passed; that the plaintiff offered no explanation for the delay; and that it was too late in the life of the case to permit him to do so. There was no abuse of discretion in the judge's allowance of the motions for protective orders in this case. Further, because the plaintiff would not be able to prove his case based on the fatal deficiencies in the affidavits of his experts, he suffered no prejudice from the allowance of defendants' motions for protective orders. See id. at 161 ("[W]e do not interfere with the judge's exercise of discretion in the absence of a showing of prejudicial error resulting from an abuse of discretion").
Although the due date for the plaintiff to serve interrogatories on the defendants under Rule 30 was December 29, 2014, the plaintiff did not serve his interrogatories on the defendants until January 15, 2016.
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3. Order on motion to compel. The plaintiff argues that "[t]he court erred in allowing [Alexander's] motion to compel the plaintiff to attend a deposition in Boston, MA," and that this order and "any sanctions applied to him" should be vacated. Where the plaintiff did not appear for the deposition and does not identify any sanctions against him for his failure to do so, and where summary judgment for Alexander was granted on other grounds, we need not address this claim any further. See ibid.
Judgment affirmed.