Bolles v. Vernon

9 Mass. L. Rptr. 174
CourtMassachusetts Superior Court
DecidedSeptember 30, 1998
DocketNo. 931911
StatusPublished
Cited by1 cases

This text of 9 Mass. L. Rptr. 174 (Bolles v. Vernon) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolles v. Vernon, 9 Mass. L. Rptr. 174 (Mass. Ct. App. 1998).

Opinion

Quinlan, J.

INTRODUCTION

This case is before the Court on the above-captioned motions, following a trial and jury verdict against the defendant, James K. Vernon, M.D. (“Dr. Vernon”), for $1 million, based on his failure to properly diagnose the decedent, Paula Bolles’s breast cancer.

Dr. Vernon has moved for judgment notwithstanding the verdict (JNOV) on the grounds that there was insufficient evidence to establish either that he departed from his standard of care or that any action or inaction on his part caused or contributed to any injuries, damages or death to Paula Bolles. Dr. Vernon has moved for a new trial on the grounds that he was prejudiced by plaintiffs counsel’s reference, in the jury’s presence, to another case pending against Dr. Vernon during cross-examination of a defense expert.

In opposition, the plaintiff asserts that the testimony of its experts sufficiently established the standard of care Dr. Vernon was obligated to exercise, his breach thereof, and the causal connection between the breach and the harm to the decedent. He also argues that Dr. Vernon was not prejudiced by his counsel’s inadvertent reference to another case against Dr. Vernon.

For the reasons which follow, the defendant’s motions are DENIED.

DISCUSSION

A. Judgment Notwithstanding the Verdict

The standard governing a motion for judgment notwithstanding the verdict is the same as that for a directed verdict, that is, whether evidence construed against the moving party justifies a verdict against him. See Henderson v. D’Annolfo, 15 Mass.App.Ct. 413, 419 (1983). In acting on a defendant’s motion for JNOV, it is the trial judge’s task, taking into account all of the evidence in its aspect most favorable to the plaintiff, to determine whether, without weighing credibility of witnesses or otherwise considering weight of evidence, the juiy reasonably could return a verdict for the plaintiff. Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 254 (1983).

1. Standard of Care and Departure Therefrom

In a medical malpractice action, the plaintiff must prove that the defendant physician departed from the standard of care owed by physicians in his specialty, which departure directly and proximatefy causes the plaintiffs injuries. Harlow v. Chin, 405 Mass. 697, 701 (1989). The causal relationship between medical care provided by the defendant physician and a patient’s injuries must be established by expert testimony. Id. at 702. Moreover, the plaintiff must show that the alleged injury more likely resulted from an act of negligence by the defendant than from a cause for which the defendant is not responsible. Forlano v. Hughes, 393 Mass. 502, 507 (1984).

Dr. Vernon asserts that the plaintiff failed to establish that he departed from the standard of care owed to Paula Bolles, or that there was any causal connection between his alleged negligence and Paula Bolles’s death. As to standard of care, his argument seems to be that because the plaintiffs expert, Dr. Francis J. O’Connor, M.D., was a radiologist and not a surgeon, he was unqualified to establish the standard of care owed by Dr. Vernon, who is a surgeon, in responding to the discovery of a lump in a woman’s breast. Unfortunately for Dr. Vernon, the law in Massachusetts is to the contrary.

In Letch v. Daniels, 401 Mass. 65 (1987), the Supreme Judicial Court stated that a medical expert need not be a specialist in the area concerned nor be practicing in the same field as the defendant. See id. at 68. “The crucial issue is whether the witness has sufficient education, training, experience and familiarity with the subject matter of the testimony.” Id. A trial judge has broad discretion in determining the qualifications of a witness to testify as an expert. Id. at 66.

In this case, the court was satisfied that Dr. O’Connor was qualified to testify as an expert regarding the standard of care owed when a doctor — including a surgeon— discovers a lump in a woman’s breast. The court need not rehash Dr. O’Connor’s entire testimony as to his qualifications, but notes that he spent twenty-five years at Augusta General Hospital in Maine, where he developed an extensive teaching program which included training individuals in diagnosing breast cancer, see Trial Transcript at 3-9, and thereafter he spent eight years developing a cancer care program at a West Virginia hospital. Trial Transcript at 3-8 to 3-9. Dr. O’Connor testified that he worked as a surveyor for the American College of Surgeons’ Commission on Cancer, in which capacity it was his job to review hospitals to determine if they met with acceptable standards of cancer care. See Trial Transcript at 3-15 to 3-17. Dr. O’Connor testified that he personally performed over 5,000 breast examinations. Trial Transcript at 3-19. He also testified that he has been consulted as to standards of care since the early 1970s, and has testified in the [175]*175courts of numerous states, including Massachusetts, as to standard of care. Trial Transcript at 3-22 to 3-23. In short, Dr. O’Connor was qualified to testify as to the standard of care owed by Dr. Vernon in the circumstances of the present case.

As for whether Dr. Vernon departed from the standard of care, Dr. O’Connor’s testimony was sufficient to support such a verdict. Dr. O’Connor testified that breast examinations are usually taught during the second year of medical school, and that when an abnormality is found, the response should be the same regardless of the examiner’s specialty. Trial Transcript at 3-10, 3-12. He further testified that once a lump is detected in a breast, the only way to definitively diagnose whether it is cancer is to perform a biopsy. Trial Transcript at 3-37. He testified that once a breast examination reveals an abnormality, the examiner must record the location, the size, and the firmness of the lump. Trial Transcript at 3-46. He testified that based on Dr. Vernon’s finding a prominence during his breast examination of Paula Bolles on December 11, 1989, Dr. Vernon should have performed abiopsy, and that his failure to do so deviated from the standard of care. Trial Transcript at 3-79 to 3-82. He also testified that Dr. Vernon’s failure to measure the lump deviated from the standard of care. Trial Transcript at 3-101 to 3-102. He testified that Dr. Vernon further deviated from the standard of care when he examined Paula Bolles again in April of 1990, found that the lump had become more prominent, and did not perform a biopsy. Trial Transcript at 3-102. He testified that Dr. Vernon again deviated from the standard of care when Paula Bolles returned in May and Dr. Vernon again failed to perform a biopsy, Trial Transcript at 3-105.

In sum, there was ample testimony to establish that Dr. Vernon deviated from the standard of care he should have exercised once he discovered the lump in Paula Bolles’s breast, and again when she returned for re-examination on two more occasions.

2. Causation3

a. Paula Bolles’s Death

Dr. O’Connor testified that in his opinion, had Paula Bolles been properly diagnosed in April 1990, she more likely than not would have survived. Trial Transcript at 3-104. He testified that she would have had an increased likelihood of survival had she been properly diagnosed in May 1990, at the time of her third visit to Dr. Vernon.

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Bluebook (online)
9 Mass. L. Rptr. 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolles-v-vernon-masssuperct-1998.