Campbell v. Cape & Islands Healthcare Services, Inc.

961 N.E.2d 1096, 81 Mass. App. Ct. 252
CourtMassachusetts Appeals Court
DecidedFebruary 7, 2012
DocketNo. 10-P-2017
StatusPublished
Cited by5 cases

This text of 961 N.E.2d 1096 (Campbell v. Cape & Islands Healthcare Services, Inc.) 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
Campbell v. Cape & Islands Healthcare Services, Inc., 961 N.E.2d 1096, 81 Mass. App. Ct. 252 (Mass. Ct. App. 2012).

Opinion

Fecteau, J.

The plaintiffs, husband William N. Campbell (Campbell) and wife, Deborah A. Campbell, sued Cape and Island Health Care Services (clinic), Cape Cod Pathology Consultants, P.C. (professional corporation), and various individual defendants alleging medical malpractice, seeking to enforce their liability for damages suffered by Campbell in an ensuing automobile accident moments following a blood draw. After two medical malpractice tribunals concluded that there was insufficient evidence with respect to some defendants, settlements and dismissals ensued; trial then proceeded against the remaining defendants, namely the clinic, Dr. Arthur Aaronson, and the professional corporation. The jury returned a special verdict in favor of those defendants, finding no negligence.

The plaintiffs claim error by the judge in the admission of testimony by a defense witness characterized as an expert, the lack of a jury instruction related to the defendants’ compliance with 105 Code Mass. Regs. § 180.042 (1994), improper closing argument by defense counsel, and the denial of plaintiffs’ motions for a directed verdict. As we discern prejudicial error in the omission by the judge of a jury instruction concerning the admitted regulation, we must reverse.

Background. The jury could have found the following. Campbell, who has a history of an unsteady gait, weakness, and muscle inflammation, presented at the clinic on Saturday, December 2, 2000, approximately between 8:00 and 8:30 a.m., to have his blood drawn for a three-hour glucose tolerance test. This involved five blood draws consisting of a “fasting” blood draw, followed by ingestion of a glucose drink at 8:45 a.m., and then additional draws at thirty minutes, one hour, two hours, and three hours intervals following his consumption of the glucose drink. He was observed on arrival at the clinic to have an unsteady gait and a pale visage, and proclaimed himself to be “tired.” As time progressed he also exhibited lack of coordination and sweating. Between the thirty-minute and one-hour draws, he became sufficiently weak and unsteady so that the staff brought him to a recliner and gave him water to drink. He remained in the recliner for the balance of the test. After leaving the clinic, Campbell was involved in a serious single car accident in which he stmck a util[254]*254ity pole while in a hypoglycemic (low blood sugar) condition.4 We reserve the discussion of other pertinent facts for our analysis as necessary.

Discussion. Jury instruction/Code of Massachusetts Regulations. After a lengthy mid-trial hearing, the judge admitted 105 Code Mass. Regs. § 180.042(A)(3) (1994) in evidence.5 When requested to instruct the jury as to the significance of a finding, by the jury, of a failure to comply with a safety statute or regulation, the judge declined to do so. The plaintiff contends that this was substantial error.

a. Opinion evidence in regard to violations of regulations. First, to the extent that, as a condition for the instruction, the judge required a witness to testify that the Code of Massachusetts Regulations was violated, this was error.

It is well established that “[a] violation of a statute, ordinance or regulation, although not conclusive, is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent.” Follansbee v. Ohse, 293 Mass. 48, 52 (1935), quoting from Guinan v. Famous [255]*255Players-Lasky Corp., 267 Mass. 501, 516 (1929). In Massachusetts, “it is entirely proper to offer in evidence ... [an official regulation] to show the relevant standard of care.” Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 793 (1996). While evidence that a statute was violated is some evidence of negligence, it does not constitute negligence per se. Ibid. However, our courts have not ruled, and the defendants offer no basis for the assertion that, in order for a jury to consider the violation of a regulation as evidence of negligence, a witness must testify that the regulation was violated.6 See, e.g., Perry v. Medeiros, 369 Mass. 836, 842 (1976) (it was for jury to find violation of building code as evidence of negligence without testimony by building inspector that there was a violation of the code); Matteo v. Livingstone, 40 Mass. App. Ct. 658, 663 (1996) (finding it proper to exclude expert witness testimony regarding building code allegedly violated in negligence case); Deguio v. United States, 732 F. Supp. 1240 (D. Mass. 1990) (ruling in a jury-waived trial applying Massachusetts law that circumstantial evidence could be relied upon to determine if regulation violated). See also Toubiana v. Priestly, 402 Mass. 84, 90 (1988) (fact that expert gave testimony on issue contrary to the jury verdict did not render the jury verdict erroneous).

While it is true that a “judge need not instruct the jury on every spin that a party can put on the facts,” and will not provide an “instruction that is not relevant to the facts of the case,” Boothby v Texon, Inc., 414 Mass. 468, 483, 484 (1993), that is not the case here.

b. Relevance of regulation to protocols and procedures. Through five separate witnesses called at trial, the plaintiffs introduced ample evidence to show the relevance of the regulation pertaining to blood laboratories to the defendants’ alleged negligence and the manner in which the defendants failed to comply with this regulation.

Deborah Hobill, a phlebotomist employed at the clinic, identi[256]*256fled a phlebotomy procedure manual (manual) that was in effect at the clinic in December of 2000, which she described as her exclusive resource for information concerning the policies and procedures at clinic. Hobill testified that she had no authority to operate outside the procedures in the manual. Hobill further admitted she had never initiated a medical intervention for any reactions not listed in the “Instructions for Treatment of Reactions” contained in the manual, and that the comment to the protocols set forth in the manual stated that in the event of a reaction, the employee should call the supervisor, and that only a supervisor may call a physician. Hobill further testified that while she worked at the clinic, no medical doctor was present at any time. She was not aware whether a doctor was ever on-call at the clinic, or whether there were any on-call lists for doctors to consult during the course of her duties at the clinic.

Testimony also revealed that the manual included specific instructions for clinic phlebotomists in the event a patient exhibited one of the following symptoms: fainting, nausea and vomiting, hyperventilation, convulsions, hematoma, or cardiac or respiratory difficulties. The manual listed no additional signs or symptoms. Hobill admitted that, at the time of Campbell’s glucose tolerance test, she did not know the signs and symptoms of hypoglycemia, and had no knowledge relating to cognitive changes that a hypoglycemic patient may experience.

Dr. David Rosenthal testified that at 12:00 p.m. on December 12, 2000, Campbell was hypoglycemic.

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Cite This Page — Counsel Stack

Bluebook (online)
961 N.E.2d 1096, 81 Mass. App. Ct. 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-cape-islands-healthcare-services-inc-massappct-2012.