NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-12
LIDIANE A. ROCHA & another1
vs.
NILTON MEDINA & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On June 5, 2023, following a medical malpractice trial in
the Superior Court, a jury returned verdicts in favor of the
plaintiffs, Lidiane A. Rocha (Rocha) and her husband Marcizio
Araujo, for claims of negligence and loss of consortium against
defendant Nilton Medina (Dr. Medina). The jury awarded damages
against Dr. Medina but not Boston Medical Center (BMC), finding
that BMC had no power over Dr. Medina's treatment decisions. A
judgment entered on June 6, 2023, and Dr. Medina now appeals,
asserting that the judge below committed reversible error by (1)
denying Dr. Medina's request for a new trial, and (2) failing to
1 Marcizio J. Araujo.
2 Boston Medical Center. properly instruct the jury as to factual or "but-for" causation.
Dr. Medina also argues that the judgment must be vacated due to
insufficient evidence as to the element of causation, and
because the judgment was rendered by a Superior Court jury of
less than twelve members. We affirm.
Background. We summarize the following relevant facts,
while reserving further facts for discussion.
On February 11, 2015, Rocha underwent a bilateral breast
reduction surgery performed by Dr. Medina at BMC. The parties
disputed whether Dr. Medina arrived late to the hospital on the
morning of the surgery, since the surgery commenced over an hour
after it was scheduled to begin. When he arrived, Dr. Medina
immediately began his preoperative markings, which Rocha
testified that he completed in under five minutes.3 Dr. Medina
did not use a tape to take any measurements or take photographs
of the preoperative markings. At trial, Mark Weinstein (Dr.
Weinstein), an expert on plastic surgery retained by Rocha,
testified that Dr. Medina failed to perform critical
measurements and a corresponding visual assessment to determine
the proper location of Rocha's nipples, and breached the
3 Preoperative markings identify the surgical site and help the surgical team perform incisions. 2 standard of care by ultimately placing Rocha's nipples too high
on her breasts.
In the days following the surgery, Rocha noticed that her
nipples were unusually high, and were protruding from the top of
her bra. In February, March, and May of 2015, Rocha returned to
the BMC with complaints of her nipples being too high. She was
told that it was still early, and that once the swelling went
down her nipples would fall into place. After several months of
waiting for the healing process to lower her nipples without
much change, Dr. Medina agreed to perform a second procedure to
surgically lower the nipples. Dr. Medina performed this surgery
free of charge and offered Rocha free liposuction of her abdomen
and back. The second surgery was unsuccessful in lowering the
nipples and resulted in scarring that was not present after the
first surgery. During her direct examination at trial, Rocha
testified that during a postoperative visit with Dr. Medina
following the second surgery, Dr. Medina assured her that he
would fix her high nipples. Rocha further testified that Dr.
Medina approached her and hugged her while she was dressed only
in her underwear, and that he told Rocha "not to worry because
[she] was going to look really good, and it was just the
process." Dr. Medina's trial counsel did not contemporaneously
object to the admission of this testimony but did object at a
3 subsequent lunch break and requested a mistrial for its
admission.4 The request was grounded on relevance, lack of
notice regarding the doctor's alleged conduct, and the potential
prejudice arising from the testimony. The judge heard from both
parties' trial counsel, and after a lengthy sidebar discussion
concluded that the doctor was provided adequate notice regarding
his alleged behavior, albeit "not as much notice as [the judge]
would have liked," and denied the motion. The judge also
concluded, however, that a curative instruction to the jury was
warranted and provided one thereafter.
Discussion. 1. Motion for new trial. Dr. Medina argues
that the trial judge committed reversible error by failing to
grant his motion for a new trial. His motion was primarily
premised on the admission of Rocha's testimony regarding the
alleged hug, as well as the trial judge's curative instruction
regarding that testimony and the judge's failure to strike the
testimony sua sponte or grant a mistrial. These arguments are
unavailing.
We review the denial of a motion for a new trial "for a
significant error of law or abuse of discretion." Commonwealth
4 Dr. Medina's counsel did object earlier in the trial when Dr. Medina was asked by Rocha's counsel during cross-examination whether he ever recalled hugging Rocha while she was alone in his office and "was dressed not at all." However, the basis for the objection is not apparent on the record. 4 v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022). "[A] new trial
should be granted only when on a survey of the whole case it
appears to the judge that otherwise a miscarriage of justice
would result" (quotation and citation omitted). Fitzpatrick v.
Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507,
514 (2021).
A request for a mistrial is "an immediate, on-the-spot
response to a specific issue so serious that it warrants
breaking off a trial that has begun, and may be close to
concluding." Fitzpatrick, 487 Mass. at 513. Therefore, "[i]n
both civil and criminal cases, a motion for a mistrial must be
made immediately after the events prompting the motion occur, or
as soon as the moving party learns of them." Id., citing
Commonwealth v. DiPietro, 373 Mass. 369, 387 (1977). "[A]
mistrial is generally regarded as the most drastic remedy and
should be reserved for the most grievous error where prejudice
cannot otherwise be removed" (quotations and citation omitted).
Fitzpatrick, supra. We review the denial of a motion for a
mistrial for an abuse of discretion. See Commonwealth v.
Bryant, 482 Mass. 731, 739 (2019).
Here, it is undisputed that Dr. Medina's trial counsel did
not contemporaneously object to Rocha's testimony about the
alleged hug, and instead chose to address the issue with the
5 trial judge some two hours later at a sidebar conference during
the lunch break, which is also when she first requested a
mistrial. Because Dr.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-12
LIDIANE A. ROCHA & another1
vs.
NILTON MEDINA & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On June 5, 2023, following a medical malpractice trial in
the Superior Court, a jury returned verdicts in favor of the
plaintiffs, Lidiane A. Rocha (Rocha) and her husband Marcizio
Araujo, for claims of negligence and loss of consortium against
defendant Nilton Medina (Dr. Medina). The jury awarded damages
against Dr. Medina but not Boston Medical Center (BMC), finding
that BMC had no power over Dr. Medina's treatment decisions. A
judgment entered on June 6, 2023, and Dr. Medina now appeals,
asserting that the judge below committed reversible error by (1)
denying Dr. Medina's request for a new trial, and (2) failing to
1 Marcizio J. Araujo.
2 Boston Medical Center. properly instruct the jury as to factual or "but-for" causation.
Dr. Medina also argues that the judgment must be vacated due to
insufficient evidence as to the element of causation, and
because the judgment was rendered by a Superior Court jury of
less than twelve members. We affirm.
Background. We summarize the following relevant facts,
while reserving further facts for discussion.
On February 11, 2015, Rocha underwent a bilateral breast
reduction surgery performed by Dr. Medina at BMC. The parties
disputed whether Dr. Medina arrived late to the hospital on the
morning of the surgery, since the surgery commenced over an hour
after it was scheduled to begin. When he arrived, Dr. Medina
immediately began his preoperative markings, which Rocha
testified that he completed in under five minutes.3 Dr. Medina
did not use a tape to take any measurements or take photographs
of the preoperative markings. At trial, Mark Weinstein (Dr.
Weinstein), an expert on plastic surgery retained by Rocha,
testified that Dr. Medina failed to perform critical
measurements and a corresponding visual assessment to determine
the proper location of Rocha's nipples, and breached the
3 Preoperative markings identify the surgical site and help the surgical team perform incisions. 2 standard of care by ultimately placing Rocha's nipples too high
on her breasts.
In the days following the surgery, Rocha noticed that her
nipples were unusually high, and were protruding from the top of
her bra. In February, March, and May of 2015, Rocha returned to
the BMC with complaints of her nipples being too high. She was
told that it was still early, and that once the swelling went
down her nipples would fall into place. After several months of
waiting for the healing process to lower her nipples without
much change, Dr. Medina agreed to perform a second procedure to
surgically lower the nipples. Dr. Medina performed this surgery
free of charge and offered Rocha free liposuction of her abdomen
and back. The second surgery was unsuccessful in lowering the
nipples and resulted in scarring that was not present after the
first surgery. During her direct examination at trial, Rocha
testified that during a postoperative visit with Dr. Medina
following the second surgery, Dr. Medina assured her that he
would fix her high nipples. Rocha further testified that Dr.
Medina approached her and hugged her while she was dressed only
in her underwear, and that he told Rocha "not to worry because
[she] was going to look really good, and it was just the
process." Dr. Medina's trial counsel did not contemporaneously
object to the admission of this testimony but did object at a
3 subsequent lunch break and requested a mistrial for its
admission.4 The request was grounded on relevance, lack of
notice regarding the doctor's alleged conduct, and the potential
prejudice arising from the testimony. The judge heard from both
parties' trial counsel, and after a lengthy sidebar discussion
concluded that the doctor was provided adequate notice regarding
his alleged behavior, albeit "not as much notice as [the judge]
would have liked," and denied the motion. The judge also
concluded, however, that a curative instruction to the jury was
warranted and provided one thereafter.
Discussion. 1. Motion for new trial. Dr. Medina argues
that the trial judge committed reversible error by failing to
grant his motion for a new trial. His motion was primarily
premised on the admission of Rocha's testimony regarding the
alleged hug, as well as the trial judge's curative instruction
regarding that testimony and the judge's failure to strike the
testimony sua sponte or grant a mistrial. These arguments are
unavailing.
We review the denial of a motion for a new trial "for a
significant error of law or abuse of discretion." Commonwealth
4 Dr. Medina's counsel did object earlier in the trial when Dr. Medina was asked by Rocha's counsel during cross-examination whether he ever recalled hugging Rocha while she was alone in his office and "was dressed not at all." However, the basis for the objection is not apparent on the record. 4 v. Sanchez, 100 Mass. App. Ct. 644, 647 (2022). "[A] new trial
should be granted only when on a survey of the whole case it
appears to the judge that otherwise a miscarriage of justice
would result" (quotation and citation omitted). Fitzpatrick v.
Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507,
514 (2021).
A request for a mistrial is "an immediate, on-the-spot
response to a specific issue so serious that it warrants
breaking off a trial that has begun, and may be close to
concluding." Fitzpatrick, 487 Mass. at 513. Therefore, "[i]n
both civil and criminal cases, a motion for a mistrial must be
made immediately after the events prompting the motion occur, or
as soon as the moving party learns of them." Id., citing
Commonwealth v. DiPietro, 373 Mass. 369, 387 (1977). "[A]
mistrial is generally regarded as the most drastic remedy and
should be reserved for the most grievous error where prejudice
cannot otherwise be removed" (quotations and citation omitted).
Fitzpatrick, supra. We review the denial of a motion for a
mistrial for an abuse of discretion. See Commonwealth v.
Bryant, 482 Mass. 731, 739 (2019).
Here, it is undisputed that Dr. Medina's trial counsel did
not contemporaneously object to Rocha's testimony about the
alleged hug, and instead chose to address the issue with the
5 trial judge some two hours later at a sidebar conference during
the lunch break, which is also when she first requested a
mistrial. Because Dr. Medina's motion for a mistrial was
untimely and therefore unpreserved, we review to determine
whether the trial judge's denial of the mistrial created a
substantial risk of a miscarriage of justice. See Fitzpatrick,
487 Mass. at 513. In concluding that a substantial risk of a
miscarriage of justice did not result, we are confident that the
trial judge's curative instruction appropriately dealt with the
prejudice stemming from Rocha's testimony. The curative
instruction informed the jurors:5
"During this trial, you may hear testimony about an interaction between the plaintiff, Ms. Rocha, and the defendant, Dr. Medina, involving a hug. You may or may not find this evidence relevant to the issues in this case. If you don't find it relevant, you are to disregard it. If you do find it relevant, you are to consider why it is relevant and then consider it for that limited purpose or purposes only. This is not being offered to show bad character on the part of Dr. Medina and you should not consider it as such. So it is your -- it is totally within your province to decide is this evidence relevant? If it's not, disregard it. If you find that it is relevant, you need to decide why and then apply it solely for that limited purpose of why you think it's relevant."
Dr. Medina contends that this curative instruction was "an
improper delegation of judicial function" because instructing
the jury to determine whether the testimony was relevant "did
5 The trial judge assumed that all parties objected to the curative instruction and noted their objections on the record. 6 nothing to alleviate the harm . . . [but instead] left [the
testimony] for the jury to use . . . for any purpose [they]
wished." Contrary to this contention, the instruction mandated
Rocha's testimony should not be considered "to show bad
character on the part of Dr. Medina," and should only be
considered to the extent the jury finds it relevant to a
particular issue in the case. Indeed, it was well within the
judge's discretion to use a curative instruction to "correct any
error and to remedy any prejudice to the defendant" (citation
omitted), Commonwealth v. Costa, 69 Mass. App. Ct. 823, 827
(2007), and we disagree that the instruction failed to do so
here.6 Likewise, given this curative instruction we also
conclude that the trial judge's failure to strike Rocha's
testimony sua sponte did not create a substantial risk of a
miscarriage of justice.7 Accordingly, we see no abuse of
6 We also note that although Dr. Medina's trial counsel asserted both at trial and in his motion for a new trial that Dr. Medina was not provided with notice of Rocha's testimony, Dr. Medina was, in fact, asked about the alleged hug during his October 2019 deposition.
7 Dr. Medina's trial counsel did not move to strike Rocha's testimony.
7 discretion in the judge's denial of Dr. Medina's motion for a
new trial. Sanchez, 100 Mass. App. Ct. at 647.8
2. Causation arguments. Dr. Medina sets forth two
arguments on appeal relating to causation. First, he argues
that the trial judge, by using the Superior Court model jury
instructions, failed to adequately instruct the jury on factual
or "but-for" causation in contravention of the Supreme Judicial
Court's decision in Doull v. Foster, 487 Mass. 1, 6 (2021).
Second, Dr. Medina contends that the evidence presented at trial
was insufficient for a jury to find that Dr. Medina's negligence
caused Rocha's high nipples. We disagree.
a. Jury instructions. Dr. Medina argues that the trial
judge's use of the model jury instructions did not comply with
Doull because the model instructions diluted the "but-for"
standard of causation by stating that causation can be found if
a defendant's negligence "make[s] a difference," "ha[s] an
8 Dr. Medina also identifies the following "erroneous rulings" that trial counsel did object to: (1) the trial judge's allowance of the impeachment of Dr. Medina when he testified about textbooks and literature that were not disclosed in his pretrial interrogatories; (2) the use of medical records of other patients treated by Dr. Medina; (3) the admission of a weather report on the day of the first surgery; and (4) the admission of a picture of Rocha measuring the distance from her sternal notch to her nipple. However, we conclude that none of these rulings amounted to an abuse of discretion or error of law. See Antoniadis v. Basnight, 99 Mass. App. Ct. 172, 176 (2021), citing Zucco v. Kane, 439 Mass. 503, 507 (2003). 8 impact," or "was a factor in causing" a plaintiff's injuries.
The Supreme Judicial Court's recent decision in Luppold v.
Hanlon, 495 Mass. 148, 160 (2025), rejected this argument and is
instructive. In Luppold, supra, the court upheld a trial judge's
use of the model instruction on causation, stating that "the
instructions as a whole . . . conveyed a 'but-for' causation
requirement as explained in Doull."9 The court further noted
that "the inclusion of the word 'impact' tracks language we used
in Doull [which stated] 'the purpose of [the] but-for standard
is to separate the conduct that had no impact on the harm from
the conduct that caused the harm." Luppold, supra at 161,
quoting Doull, 487 Mass. at 11. Accordingly, we find no error
in the trial judge's causation instruction.
b. Causation evidence. Dr. Medina asserts that there was
insufficient evidence on the issue of causation because Rocha's
expert, Dr. Weinstein, did not opine that Dr. Medina caused
Rocha's injuries. Specifically, Dr. Medina asserts that Dr.
Weinstein did not testify that Dr. Medina's failure to perform
measurements resulted in Rocha's high nipples, and that Dr.
Weinstein erroneously stated that "bottoming out" was not an
9 As was the case here, the jury instruction used by the trial judge in Luppold, 495 Mass. at 159, "largely tracked that of the Superior Court's model jury instruction on causation." 9 inherent risk of a breast reduction procedure.10 He also argues
that Dr. Weinstein improperly testified that Dr. Medina's
failure to perform two additional preoperative measurements fell
below the standard of care. To be sure, Dr. Medina is correct
that a causal link between a defendant's negligence and
plaintiff's injuries generally must be established by expert
testimony, Harlow v. Chin, 405 Mass. 697, 702 (1989). Here,
however, Dr. Medina's arguments misinterpret Dr. Weinstein's
testimony.
At trial, Rocha's theory was that Dr. Medina was negligent
by placing her nipples too high during her breast reduction
surgery. To prove this theory, Rocha sought expert testimony
from Dr. Weinstein who opined that Dr. Medina failed to take the
proper measurements, such as measurements from the sternal notch
and the mid humerus, which was a failure to meet the standard of
care that resulted in Dr. Medina placing Rocha's nipples too
high on her chest during surgery, causing her to have high
nipples.11 His exact testimony was as follows:
10Bottoming out is a phenomenon that can occur during the healing process following certain breast procedures when breast tissue drops to the lower pole of the breast. However, the parties disputed throughout trial whether bottoming out can lead to high nipples.
11The sternal notch is an indentation in the upper part of the sternum located between the clavicles and at the base of the neck. 10 Q.: "Okay. What's this line depicted on the screen?"
A.: "Using the mid humerus is one way to determine where the nipple should be. You have to view all of these things in terms of using each measurement or visualization in determining where the nipple should be. It's not just one. It's a total picture of all of these criteria to measure where the nipples should be . . . [i]f we use [the sternal notch measurement] plus the humerus plus the Inframammary Fold, you always determine where the nipple should be."
Q.: "And is that a reliable method of determining the proper location?"
A.: "Yes, that's really [the] standard of care in determining where the nipple should be."
Q.: "Okay. And does the standard of care require that a physician take those measurements?"
A.: "Yes, it does."
Q.: "And in your review of the medical literature in this case regarding Dr. Medina's surgery, did he utilize these measurements?"
A.: "I did not see any documentation that he utilized them."
Q.: "Okay. And based on that, do you form an opinion to a reasonable degree of medical certainty whether Dr. Medina met the standard in the performance of this surgery?"
A.: "Yes, he did not meet the standard of care by placing the nipples too high."
. . .
Q.: "And why can't you fix [high nipples]?"
A.: "There's no way to raise the nipple after you've placed it too high. There's just no way."
11 Contrary to Dr. Medina's argument, Dr. Weinstein did
testify that Dr. Medina caused Rocha to have high nipples, by
failing to use proper measurements. Although Dr. Medina, as
well as his expert, Dr. Pandya, testified that the standard of
care only requires that a physician take the inframammary fold
measurement to determine nipple placement, the jury were free to
credit or discredit some or all of either Dr. Pandya's or Dr.
Weinstein's testimony as to what measurements or assessments
were required by the standard of care. See Doull, 487 Mass. at
19-20 (upholding jury instruction requiring jurors to determine
which expert opinion they credit as to appropriate standard of
care). Furthermore, while Dr. Pandya testified that Rocha's
high nipples resulted from bottoming out, Dr. Weinstein
disagreed and stated that Dr. Medina placed the nipples too high
on Rocha's chest during the first surgery.12 Dr. Weinstein also
provided extensive testimony as to why bottoming out would not
have caused Rocha to have high nipples.13 Given these
12Here again, the jury were free to credit either expert as to whether bottoming out was an inherent risk of a breast reduction procedure. See Leibovich v. Antonellis, 410 Mass. 568, 573 (1991) (jury's duty "is to assess the soundness and credibility" of expert opinions).
13Dr. Weinstein testified that bottoming out only changes the orientation of the nipple rather than its position on the breast and does not cause the entire areola-nipple complex to rise. 12 conflicting views, it was the jury's function to resolve the
conflicts in the testimony and to credit either Dr. Pandya or
Dr. Weinstein's testimony as to the cause of Rocha's high
nipples. See Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct.
333, 335 (1992) (presented with battle of experts, fact finder
may reject some opinions and accept others). As such, there was
sufficient evidence for a jury to conclude that Dr. Medina's
negligence caused Rocha's condition.
3. Jury of twelve. Dr. Medina finally argues that the
judge erred in denying his request for a new trial because he
was tried before a jury of six rather than a jury of twelve in
violation of Article 15 of the Massachusetts Declaration of
Rights.14 Dr. Medina cites historical treatises, law review
articles, and entries from John Adams's diary in an effort to
persuade us to revisit the longstanding principle that Article
15, "while guaranteeing trial by jury in certain civil cases,
does not prescribe the number of jurors."15 Doyon v. Providence
14Dr. Medina was tried before a jury of six pursuant to the Supreme Judicial Court's seventh updated order regarding court operations under the exigent circumstances created by the COVID- 19 pandemic.
15Article 15 of the Massachusetts Declaration of Rights secures the right to a trial by jury in "all controversies concerning property, and in all suits between two or more persons." 13 & Worcester R.R. Co., 31 Mass. App. Ct. 751, 753-754 (1992). We
decline to do so.16
Judgment affirmed.
Orders denying postjudgment motions affirmed.
By the Court (Desmond, Walsh & Toone, JJ.17),
Clerk
Entered: March 3, 2025.
16Because Article 15 does require a jury of twelve members, we need not analyze whether the seventh updated order satisfied strict scrutiny.
17 The panelists are listed in order of seniority. 14