LaSalvia v. Johnson

15 Mass. L. Rptr. 622
CourtMassachusetts Superior Court
DecidedJanuary 21, 2003
DocketNo. 965161A
StatusPublished

This text of 15 Mass. L. Rptr. 622 (LaSalvia v. Johnson) 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
LaSalvia v. Johnson, 15 Mass. L. Rptr. 622 (Mass. Ct. App. 2003).

Opinion

King, J.

Tbe above captioned action is a medical malpractice action where the plaintiffs, Danielle LaSalvia, ppa Sonya Harrison, Sonya Harrison, and David J. LaSalvia, allege that the defendants, Cynthia Johnson, M.D. and Vanessa Barss, M.D. failed to adhere to the standard of care applicable in 1992 by not administering the antenatal steroid Betamethasone to Ms. Harrison on a weekly basis for the purpose of advancing fetal lung maturity. In addition, the plaintiffs allege that Sheronette Cousins, M.D. and Sibel Bessim, M.D. deviated from the applicable standard of care in 1992 by failing to use a different tocolytic agent when the prescribed Terbutaline failed to stop Ms. Harrison’s labor. The defendants filed a motion, pursuant to Daubert v. Merrill Dow Pharmaceuticals,3 to preclude the plaintiffs’ experts from testifying at trial that the defendants deviated from the standard of care in 1992 and that if they had adhered to the applicable standard, Danielle’s medical outcome would have been improved.4 The court held an evidentiary hearing on December 2, 2002 and heard oral arguments on December 3, 2002. At the conclusion of the hearing, the court allowed the Daubert motion in part and denied it in part. While the [623]*623court finds Dr. McDonough, the plaintiffs’ expert, qualified to opine as to the standard of care in 1992, the court finds that Dr. McDonough’s opinion, that the defendants’ failure to adhere to the applicable standard of care was a proximate cause of the plaintiffs’ injuries, has no scientific basis. For this reason, the defendants’ motion to exclude the testimony of the plaintiffs’ expert on the issue of causation will be allowed.

FINDINGS OF FACT

On June 12, 1992, Sonya Harrison (“Ms. Harrison”) was 27½ weeks pregnant. After experiencing cramping and vaginal spotting, Ms. Harrison was admitted to Brigham & Women’s Hospital with an initial diagnosis of premature contractions and dilated cervix. Once admitted, Cynthia Johnson, M.D. (“Dr. Johnson”) ordered one course of the antenatal steroid Betamethasone, consisting of two doses, and also ordered doses of Terbutaline eveiy six hours.5 Dr. Johnson, an obstetrician, consulted with Vanessa Barss, M.D. (“Dr. Barss”), a maternal fetal medicine specialist.6 From June 12 through June 20, 1992, Ms. Harrison experienced intermittent contractions and the dosage of Terbutaline was increased to every four hours.

On June 20, 1992, Dr. Sheronette Cousins (“Dr. Cousins”) transferred Ms. Harrison to Labor and Delivery due to increased contractions. While in Labor and Delivery, Sibel Bessim, M.D. (“Dr. Bessim”) ordered Terbutaline injections, which decreased the contractions to every twenty minutes, and Ms. Harrison was returned to the antenatal floor. On June 21, 1992, Drs. Cousins and Bessim delivered Danielle LaSalvia (“Danielle”) via cesarean section, due to breech presentation. Danielle was initially intubated for less than twenty-four hours, extubated, and weaned to room air. Danielle spent the first eight weeks of her life in the hospital. Today, Danielle suffers from cerebral palsy and other medical problems.7

The plaintiffs filed this medical malpractice action against the defendants on September 18, 1996. The plaintiffs seek to introduce expert testimony as to the defendants’ failure to adhere to the standard of care applicable in 1992 in two ways: first, that the applicable standard of care required additional weekly courses of Betamethasone to pregnant women in preterm labor; second, that the applicable standard of care required the administration of a second tocolytic agent when the first tocolytic agent failed to stop the premature labor. The plaintiffs claim that had the standard been followed, by administering additional weekly courses of Betamethasone, Danielle’s lungs would have been better prepared for her premature birth and that the administration of other tocolytic agents, when Terbutaline failed to stop Ms. Harrison’s labor, would have extended gestation and improved Danielle’s medical outcome.

At the evidentiary hearing, the plaintiffs offered the testimony of Edward T. McDonough Jr., M.D. (“Dr. McDonough”). The preliminary issue was whether Dr. McDonough was qualified to offer his medical opinion as to the applicable standard of care in 1992. Dr. McDonough has a license from the National Board of Medical Examiners in the areas of obstetrics and gynecology, and he is also certified by the American Board of Obstetrics and Gynecology. Throughout his career as an obstetrician/gynecologist, Dr. McDonough has delivered approximately 7,000 babies. He has been an attending physician in the departments of obstetrics and gynecology at several hospitals throughout the northeast. In addition, Dr. McDonough has held several faculty positions. He is a member of various medical societies and has served on several medical committees. Based on his background and experience, Dr. McDonough is qualified to opine as to the 1992 standard of care, and to the defendants’ breach of that standard of care, namely, that the defendants breached the duty of care owed to the plaintiffs in 1992 by failing to give additional weekly doses of antenatal steroids coupled with other tocolytic agents.8

Both sides furnished the court with numerous medical studies relevant to the causation issue. “Statements of facts or opinions on a subject of science or art contained in a published treatise, periodical... shall, in so far as the court shall find that the said statements are relevant and that the writer of such statements is recognized in his profession or calling as an expert on the subject, be admissible in actions ... for malpractice ... against physicians ... as evidence tending to prove said facts or as opinion evidence . . .” G.L.c. 233, §79C. It is undisputed that the materials and literature submitted by the parties at the Daubert hearing were admissible under G.L.c. 233, §79C.

The court now turns to the issue of whether Dr. McDonough’s opinion, that the failure to comply with the applicable standard of care caused harm to Danielle, is reliable, i.e., supported by the appropriate validation. Daubert, 509 U.S. at 590. After considering the evidence and arguments of counsel and reviewing the studies and articles submitted, the court finds that there is no reliable scientific basis to support Dr. McDonough’s opinion that the defendants’ failure to comply with the applicable standard of care, as defined by Dr. McDonough, caused damage to Danielle. The overwhelming scientific evidence submitted to the court establishes that the failure to administer additional drugs caused no harm to the plaintiffs.

In assessing whether a theory or technique is scientific knowledge that will assist the trier of fact, an important question to answer is if the theory can be or has been tested. Daubert, 509 U.S. at 593. “Scientific Methodology today is based on generating hypotheses and testing them to see if they can be falsified.” Id., quoting Green & Nesson, Problems, Cases and Materials on Evidence at 645 (1983). The scientific method is the process by which scientists collectively, and over time, attempt to create an accurate (that is, reliable, consistent [624]*624and non-arbitrary) representation of the world. Wilson, An Introduction to Scientific Research, McGraw-Hill (1952); Kuhn, The Structure of Scientific Revolutions, Univ. of Chicago Press (1962); Barrow, Theories of Everything, Oxford Univ.

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Bluebook (online)
15 Mass. L. Rptr. 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lasalvia-v-johnson-masssuperct-2003.