Bouley v. Reisman

645 N.E.2d 708, 38 Mass. App. Ct. 118
CourtMassachusetts Appeals Court
DecidedFebruary 3, 1995
DocketNo. 93-P-397
StatusPublished
Cited by7 cases

This text of 645 N.E.2d 708 (Bouley v. Reisman) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bouley v. Reisman, 645 N.E.2d 708, 38 Mass. App. Ct. 118 (Mass. Ct. App. 1995).

Opinion

Smith, J.

This is an appeal by the plaintiff, administratrix of the estate of Lillian Bouley (Bouley), from jury verdicts in favor of Jerald L. Reisman (Reisman) and Steven B. Sitzman (Sitzman), both medical doctors, and Emergency Care, Inc. (ECI). The plaintiff had alleged that the death of Bouley from advanced lung cancer resulted from the medical negligence of each of the defendants in connection with the care Bouley received at Malden Hospital. On appeal, Bouley3 has raised several issues concerning the judge’s rulings on her proposed requests for instructions and the judge’s rulings on certain evidentiary matters. First, we summarize sufficient facts to serve as background for our analysis. Later, when we consider the issues, we will summarize additional facts as the need arises.

On Sunday, February 16, 1986, Bouley was involved in an automobile accident. That afternoon she went to the emergency department at the Malden Hospital because she had been experiencing pain in the area of her left ribs, which were injured in the accident. At that time she was seen by the defendant, Dr. Reisman, a specialist in emergency medicine and an employee of ECI.

After Dr. Reisman conducted a physical examination of Bouley, he ordered X-rays taken of Bouley’s left ribs. She went to the X-ray department where four X-rays were taken: three showing the left ribs at different angles and one a posterior, anterior chest X-ray. She then returned with her X-rays to the emergency department. Because it was Sunday and after 5 p.m. when the X-rays were taken, no radiologist was on duty.

[120]*120Dr. Reisman read and interpreted the X-rays, including the chest X-ray. He wrote “OK” on the reading form and discharged Bouley. He made a discharge diagnosis of “contusion left ribs” and wrote that her condition upon discharge was “good.” He then referred her X-rays to the radiology department for review by a radiologist the following day.

The defendant, Dr. Sitzman, a radiologist, was on duty the next day. He read all of Bouley’s X-rays that morning. When he read Bouley’s chest X-ray, he saw an indeterminate density in the right upper lobe of her lung. It was Dr. Sitzman’s opinion that the density he detected in Bouley’s lung represented a “significant positive finding” which required further investigation. Bouley was not informed of the presence of the density by either Dr. Reisman or Dr. Sitzman or any other physician at the Malden Hospital. Ten months later at the Lahey Clinic, the density seen by Dr. Sitzman was diagnosed as a malignant lung cancer. Bouley died from lung cancer on February 19, 1987.

1. Alleged errors in the judge’s instructions to the jury. Bouley has raised three issues concerning the judge’s instructions to the jury. All three issues concern the failure of the judge to instruct the jury in accordance with Bouley’s requests.

a. Requested instruction as to inference to be drawn against Dr. Sitzman from lack of written record of telephone call. Dr. Sitzman testified that when a patient was referred to him by the emergency department it was his personal practice to report significant positive findings (such as he saw in Bouley’s chest X-ray) both through a written report and through a telephone report to the emergency department. It was his practice not to ask for anyone in particular when he called, but rather to give the information to whoever answered the telephone. It was Dr. Sitzman’s impression that his oral report of a significant positive finding would always be written down by the person receiving the telephone call in the emergency room. Dr. Sitzman had no actual memory of making a telephone call concerning the Bouley matter but testified that he thinks it was made be[121]*121cause he always telephoned in that situation. The doctor who was on duty in the emergency department the day that Dr. Sitzman read Bouley’s X-rays and who was also an ECI employee, could not remember any such telephone call.4 If that doctor had received a telephone call from Dr. Sitzman, there would have been some notation made in Bouley’s medical record about the contents of the telephone message. No such notation appeared in Bouley’s record.

Bouley submitted the following request for an instruction by the judge to the jury:

“If you find that it was required of all personnel in the emergency department at the Malden Hospital on February 16, 1986 to make a written record of any telephone calls made by a radiologist reporting abnormal x-rays and that this written record would be made in the emergency department record of the patient or in an addendum to the patient’s emergency department record, you may find from the lack or absence of a written record of such a telephone call in the Lillian Bouley’s emergency department records or in the addendum to it, that no such telephone call was ever made by the radiologist in this case.”

The judge did not include the instruction in his charge to the jury. Bouley renewed her request. The trial judge declined to give the requested instruction, stating “I know it is important. I have chosen not to instruct on the possible inferences and identifying the possible inferences.” Bouley claims error.

“[Ajppellate courts have traditionally accorded the trial judge considerable discretion [in] framing jury instructions, both in determining the precise phraseology to be used, Dobbs v. Driscoll, 404 Mass. 634, 655 (1989), and in determining the appropriate degree of elaboration needed, Julian [122]*122v. Randazzo, 380 Mass. 391, 397 (1980).” Ratner v. Noble, 35 Mass. App. Ct. 137, 140 (1993). “In testing the sufficiency of a change, we will read it as a whole ... to ascertain whether the judge has clearly, adequately, and correctly explained to the jury the principles that ought to guide and control their action.” Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 678 (1980) (citations omitted).

As a general rule, “requests seeking an instruction that a finding of certain specified facts (of which there was some evidence) do or do not warrant or require a particular conclusion may, within an exercise of the judge’s discretion, be properly refused.” Petras v. Storm, 18 Mass. App. Ct. 330, 334 (1984).

The reason for that general rule has been well stated by Justice Lummus in Barnes v. Berkshire St. Ry., 281 Mass. 47, 50-52 (1932). “[T]he combinations of facts that may possibly be found by the jury are so numerous in most cases, that to require a judge to state the legal result of each one of them upon request would fill the charge with rulings for the most part immaterial to the facts actually found by the jury, and make the charge long, unbalanced and confusing .... The extent to which a judge shall discuss the evidence or the subsidiary facts is generally within his discretion.” Id. at 50-51. The general rule, however, according to Justice Lummus, is subject to an exception which, like the rule itself, is based on practical grounds. “Sometimes the issue depends upon the existence of some fact, theoretically subsidiary but practically decisive if found. In such a case, for a judge to ignore the simple concrete test and submit the case upon abstract general instructions blurs the point and may mislead the jury.” Id. at 52.

The plaintiff contends that the requested instruction falls within the exception because a finding by the jury that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
645 N.E.2d 708, 38 Mass. App. Ct. 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bouley-v-reisman-massappct-1995.