McDaniel v. Pickens

695 N.E.2d 215, 45 Mass. App. Ct. 63, 1998 Mass. App. LEXIS 496
CourtMassachusetts Appeals Court
DecidedJune 12, 1998
DocketNo. 96-P-1602
StatusPublished
Cited by6 cases

This text of 695 N.E.2d 215 (McDaniel v. Pickens) 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
McDaniel v. Pickens, 695 N.E.2d 215, 45 Mass. App. Ct. 63, 1998 Mass. App. LEXIS 496 (Mass. Ct. App. 1998).

Opinion

Kaplan, J.

This medical malpractice action was initially against both Dr. Robert B. Shepherd and Dr. Samuel Pickens, defendants.

On April 19, 1989, Gail McDaniel, plaintiff, went to the Barre Family Health Center at Barre (a department of Holden Hospital) where she was seen by Dr. Shepherd, a resident in the tenth month of his first year of residency.1 The plaintiff was suffering from pains in her groin. She also pointed to a “pea-sized lump” on the left side of her neck. On finding such a “prominence” in the large neck muscle, Dr. Shepherd consulted with Dr. Pickens (associate medical director of the Barre Center), one of the four attending physicians at the Center who [64]*64was then available. The two agreed to have the prominence diagnosed by means of X-ray and blood testing, with possible referral to an ear, nose, and throat (ENT) specialist. The X-ray and other tests proved normal. The plaintiff returned to Dr. Shepherd on April 27 and May 9 for attention to the pains in her groin. On those occasions the. neck lump was present but not enlarged. At the May 9 visit, Dr. Shepherd told the plaintiff to return if “it changed at all, if she had any new symptoms.” We pass over later measures taken to resolve the groin problem.

A year later, on May 17, 1990, the plaintiff did return. The neck lump had suddenly grown much larger, as Dr. Shepherd observed. At Dr. Shepherd’s request, Dr. Pickens examined the mass. Further exploration was indicated. An ENT specialist made a “needle” biopsy. It was inconclusive, as was a CAT scan. In July, 1990, the plaintiff underwent an excisional lymph node biopsy. This showed that the plaintiff had non-Hodgkins lymphoma. The cancer had invaded the whole lymph system and bone marrow. For six months commencing August, 1990, the plaintiff underwent chemotherapy. In February, 1991, the cancer was in remission and this condition continued through the time of trial in November, 1995.

At trial, it was conceded on the part of the defense that proper medical care in the circumstances would not have consisted merely of leaving the plaintiff’s return for follow-up of the neck lump to the plaintiff’s judgment about whether the lump had changed. Ráther the physician should make sure that the plaintiff was seen within two months or so2 of the last visit. Thus Dr. Shepherd was at fault for not conforming to the proper standard of care. In the course of the defendants’ presentation of their case at trial, Dr. Shepherd was dismissed from the action: he had reached a settlement with the plaintiff. This left Dr. Pickens as sole defendant.

The plaintiff charged that Dr. Pickens had behaved negligently in that he had not himself seen to the earlier appearance of the plaintiff for reexamination. Dr. Pickens replied that as an attending physician advising a resident he was not under an independent duty to see to the timely return of the patient; he could and had properly relied on the resident (whom he thought well of) to assure the patient’s attendance.

If Dr. Pickens were found negligent, then the question of [65]*65“causation” would arise. The plaintiff charged that the lapse of the twelve months without attention to the neck lump had been detrimental to her. Dr. Pickens responded that because of the intrinsic nature of the disease, the characteristic “waxing and waning” course of its development, and the methods of treatment, it was medically indifferent that the patient was not treated earlier in the interval of time.

The matter was tried on both issues through the medical records and the testimony of plaintiff, defendants, and medical experts, and passed to the jury on special questions. The jury answered the first question, was Dr. Pickens negligent, in the negative; accordingly, the question of causation was not reached, and judgment entered in Dr. Pickens’ favor. The plaintiff appeals.

1. The plaintiff argues that the trial judge erred in unduly restricting her counsel’s cross-examination of the defendants’ experts to attempt to establish their bias..

The matter of cross-examining experts for bias was discussed in the morning just before trial began in connection with plaintiff’s subpoenas to produce and defendants’ motions to exclude evidence about the selection and compensation of defendants’ medical experts. The upshot was a ruling by the judge, in effect, that cross-examination about malpractice insurance or insurers would not be allowed; to permit such questioning, he said, would be “unfair.” He said, however, that he would not “handcuff” counsel and would allow reasonable cross-examination of experts in other ways on the subject of bias.

The question of cross-examination for bias obtruded again during trial. Dr. David E. Nicklin, an expert on family practice, testifying as plaintiff’s only expert, described on direct the fee he was charging in the present case (this, however, would go to the University of Pennsylvania of which he had become a salaried employee in 1994). In cross-examination, defense counsel elicited that Dr. Nicklin had come into the case through “MedQuest,” an organization which arranged (“brokered”) matches between lawyers and physicians acting as experts. Dr. Nicklin also said that about ninety percent of his fifty retainers as expert since 1990 were on the side of plaintiffs.3 Plaintiff’s counsel did not object to this questioning.

[66]*66Later, when plaintiffs counsel was cross-examining Dr. David S. Rosenthal, an oncologist, appearing as an expert for Dr. Shepherd, a reference to malpractice insurance slipped in. Upon defendant’s objection, the judge said the reference was unnecessary and he would charge the jury that insurance had no place in the lawsuit. Plaintiff’s counsel argued vehemently, renewing his argument at the pretrial, that he should not be barred the route of showing an expert’s bias through the expert’s connection with the liability insurance; especially should such examination be allowed here, he said, in order to “level the playing field” after the unobjected-to questioning of the plaintiff’s expert on his relation to MedQuest. The judge held to his ruling and promptly instructed the jury as indicated.4

The judge was mistaken in his understanding of the law. The legal position is stated briefly in rule 411 of the Federal Rules of Evidence (the same as the proposed Massachusetts rule 411 and reflective of existing practice):

“Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”

Thus evidence of liability insurance is firmly barred when offered in medical malpractice cases to prove that a defendant physician did or did not act negligently: this is because of the weakness of the inferential connection, see Jamison v. A. M. Byers Co., 330 F.2d 657, 661-662 (3d Cir.), cert. denied, 379 U.S. 839 (1964).

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Cite This Page — Counsel Stack

Bluebook (online)
695 N.E.2d 215, 45 Mass. App. Ct. 63, 1998 Mass. App. LEXIS 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdaniel-v-pickens-massappct-1998.