Opinion
No. 11–P–1996.
2012-10-1
Jill S. SHEA v. Heidi WILLIAMS & others.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal, the plaintiff, Jill S. Shea, contends the Superior Court judge erred in granting summary judgment to the defendants on claims that (1) Drs. Heidi Williams and Cynthia A. Fuhs, respectively, failed to render proper care and treatment to Shea's horse, Phoenix, and (2) Fuhs and Tufts University Cummings School of Veterinary Medicine (Tufts) violated G.L. c. 93A in various respects.
We affirm for substantially the reasons set forth in the judge's well-reasoned memorandum.
Shea asserts violations of G.L. c. 93A in Fuhs's request for advance payment for services, misleading information concerning Fuhs's affiliation with Tufts, and Tufts's termination of veterinary services to Phoenix following the injury.
1. The malpractice claim. The judge concluded that even assuming Drs. Williams and Fuhs fell below the standard of care of the average qualified veterinarian, Shea failed to produce any evidence of a causal connection between their negligence and the claimed harm, loss of Phoenix's eye. Thus, an essential element of Shea's proof was unlikely to be forthcoming at trial. See Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). We agree with that assessment. See Bardige v. Performance Specialists, Inc., 74 Mass.App.Ct. 99, 103 (2009). We reject Shea's arguments that the judge failed to draw all reasonable inferences in her favor, erroneously decided issues of credibility, failed to give weight to Dr. Fuhs's consent judgment with the division of professional licensure, or placed too high a burden to demonstrate causation. Shea's malpractice claim required expert testimony-grounded in facts, not speculation—establishing a causal connection between the particular defendant's negligence and Phoenix's injury. See Berardi v. Menicks, 340 Mass. 396, 401–402 (1960). Likewise, the expert's opinion needed to set forth a factual basis for establishing that a different course of treatment would have avoided the harm, and not merely “contingent, speculative, and possible” results. Glicklich v. Spievack, 16 Mass.App.Ct. 488, 493 (1983).
To the extent raised below, the argument that the judge impermissibly failed to consider the loss of chance doctrine fails for substantially the same reasons. Moreover, to avoid being speculative, a loss of chance claim must be supported by expert evidence supported by probability statistics grounded in medical data. Matsuyama v. Birnbaum, 452 Mass. 1, 17–18 (2008). There was no such evidence here.
In opposing summary judgment, Shea relied upon the affidavit of Dr. Mark T. Reilly. While identifying instances in which Drs. Williams and Fuhs purportedly deviated from the standard of care,
Dr. Reilly's affidavit failed to provide any factually-based causal connection between their alleged negligent treatment and the harm to Phoenix; the affidavit is entirely speculative regarding how the alleged deviations caused or contributed to Phoenix's enucleation. See Keppler v. Tufts, 38 Mass.App.Ct. 587, 592 (1995); LaFond v. Casey, 43 Mass.App.Ct. 233, 237–238 (1997). Indeed, Reilly's affidavit did not even provide a diagnosis
Among the purported deviations are Williams's failure to lift Phoenix's eyelid, to order a protective eye covering, and to schedule an earlier follow up; and Fuhs's failure to visit immediately or refer to another veterinarian who could do so.
regarding Phoenix's injury, much less opine whether, or how, better care and treatment would likely have resulted in saving Phoenix's eye. Absent a factually-based diagnosis as to what caused the loss of Phoenix's eye, whether Drs. Williams's and Fuhs's alleged deviations from the standard of care made any difference, or whether more prompt treatment would have saved the eye, are wholly speculative.
Shea acknowledged at oral argument that Reilly's affidavit offered no diagnosis as to the cause of the injury to Phoenix's eye.
Nothing in Rahilly v. North Adams Regional Hosp., 36 Mass.App.Ct. 714, 717–718 (1994), and Glicklich, supra, are to the contrary. In those cases, the proffered medical expert could state with reasonable medical certainty how the attending physician erred, what the appropriate diagnosis would have been, and what that diagnosis would have revealed. Here, by contrast, Dr. Reilly's affidavit fails to state with reasonable medical certainty any diagnosis, what the appropriate treatment would have been upon such diagnosis, and whether, with proper and timely diagnosis, Phoenix's eye would have been saved.
Dr. Reilly opined only that “it would have been more likely that Phoenix's eye could have been saved had he been examined or referred to Tufts on Saturday February 24, 2007, or at any time earlier than the time he actually was brought there on Sunday.”
2. G.L.c. 93A claims. The judge did not err in concluding that Shea's claims against Fuhs and Tufts under G.L. c. 93A must fail. Negligent provision of medical care is not an unfair or deceptive act or practice within the meaning of G.L. c. 93A. See Darviris v. Petros, 442 Mass. 274, 279 (2004). We reject as nothing more than a claim of malpractice in a different guise Shea's contention, advanced at argument, that “the key unfair and deceptive act” is the failure of Fuhs and Tufts to advise that Fuhs was not a Tufts employee on Saturday evening because had such disclosure been made, alternative arrangements would have been made.
Even were we to assume that Fuhs's requirement of up-front payment implicates the business and entrepreneurial aspects of providing medical services, see id. at 278, such a requirement is not deceptive. Nor can it reasonably be maintained that such a requirement, however onerous, is unfair as applied to Shea, with whom Fuhs had no preexisting relationship.
We agree substantially with the judge that Fuhs's and Tufts's interactions with Shea after the loss of Phoenix's eye do not arise within the context of trade or commerce for purposes of c. 93A. See First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347 (1997). At that point, any commercial relationship had ceased. Indeed the purpose of the meetings with Tufts concerned dissatisfaction with services previously rendered by Williams and Fuhs. With limited exceptions not relevant here, c. 93A has never been construed so broadly as to permit actions that arise in the context of litigation or settlement. See Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 458 (2004). Moreover, we discern nothing in those interactions that may be characterized as unfair or deceptive acts or practices in trade or commerce. “Mere resistance to [even] a just claim is not the stuff of c. 93A.” Framingham Auto Sales v. Workers' Credit Union, 41 Mass.App.Ct. 416, 418 (1996).
Judgment affirmed.