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-310
STEPHEN G. MCDONOUGH, personal representative,1
vs.
SAYUJ PAUDEL & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a wrongful death action brought by the plaintiff,
Stephen McDonough, as personal representative of the estate of
Nancy McDonough, against Sayuj Paudel, M.D., and his employer,
Massachusetts Acute Care Specialists, P.C.3 The plaintiff
alleged, among other things, that the defendants had been
1 Of the estate of Nancy McDonough.
2 Massachusetts Acute Care Specialists, P.C.; additional defendants, Michael Cohen, Salis Midha, and Salis K. Midha M.D., P.C., were dismissed by stipulation of the parties prior to trial.
3 There was a stipulation that the defendant employer would be vicariously liable in the event of a finding adverse to the defendant, Dr. Paudel. Therefore, the jury were not asked to determine separately the liability of the employer. negligent and that they had failed to obtain informed consent to
treatment from the decedent.
After a jury trial, the jury found that Dr. Paudel was
negligent in his care of the decedent, that he had failed to
obtain her informed consent to treatment, and that both of these
were causes of her death. Accordingly, the jury awarded damages
for wrongful death in the amount of $3,400,000. The judge added
twelve percent prejudgment interest, see G. L. c. 229, § 11;
G. L. c. 231, § 6B, in the amount of $3,227,161, and entered
judgment in the combined amount of $6,627,161. The defendants
have now appealed.4 For the reasons described below, we affirm.
1. The jury instruction relating to the proper standard of
causation. The judge instructed the jury based upon the model
jury instructions in relevant part as follows:
"You must ask would Nancy McDonough's death have happened without defendant's negligence. The defendant caused Nancy's death if the death would not have occurred absent, that is, but for[,] the defendant's negligence. If the defendant's negligence had an impact on plaintiff's death, then it caused that death. But if the negligence had no impact on plaintiff's death and the same harm would have happened anyway, then the defendant did not cause Nancy McDonough's death."
4 The defendants also appealed from the denial of their postjudgment motion for judgment notwithstanding the verdict, to set aside the verdict, to order a new trial, and/or to amend the judgment.
2 Although this is the focus of the defendant's concern,
there was a portion of the judge's instructions immediately
following, which we quote for completeness's sake.
"Often an injury or harm has more than one cause. If defendant's negligence was one of those causes, that is enough. Plaintiff does not have to show that defendant's negligence was the only cause of Nancy McDonough's death, nor does plaintiff have to show that the negligence was the largest or main cause of Nancy's death[,] as long as the death would not have occurred without the defendant's negligence."
After deliberations commenced, the jury came back with one
question. In its entirety, it read:
"We are requesting clarification of causation. Regarding the instructions of causation on pg. 7 & 8[.] [sic.] There seems to be contradicting statements/questions for us to answer.
"For [e]xample:
"- pg 7 - 'The Defendant caused Nancy's death if the death would not have occurred absent, that is, but for, the Defendant's negligence.'
"This seems to contradict the following sentence:
"'If a defendant[']s negligence had an impact on plaintiff's death, then it caused that death.'
"How should we reconcile these seemingly conflicting instructions?"
After discussion with counsel, the judge provided the
following response to the jury's question:
"Thank you for your question.
3 "I appreciate that you perceive a conflict in the 'causation' instructions, but I do not believe there is an actual conflict.
"Please read all the instructions, each sentence -- each, sentence, each paragraph -- together, and apply all the principles as you determine whether the alleged negligence in this case caused Mrs. McDonough's death.
"The second paragraph at the bottom of page 7 (beginning 'you must ask') identifies the requirement of 'but for' causation. The next paragraph at top of page 8 (beginning 'Often, an injury or harm . . .') explains that there may be more than one 'but for' cause of an injury. You should apply both those concepts, and follow all the causation instructions, considered together."
The defendants now argue on appeal that the use of the word
"impact" in the middle of the first paragraph in the judge's
earlier quoted instructions suggests that "'less than' true but-
for causation" may be a basis for a finding of liability. They
argue that with the added use of the word "impact," a jury might
conclude that negligence having some effect or impression, such
as making the harm more likely, could support a finding of
liability. They also argue that the way the instruction is
written, it may suggest that the jury could find liability
regardless of "but for causation" unless the negligence had no
impact at all on the situation.
This case is controlled by the Supreme Judicial Court's
decision earlier this year, during the pendency of this appeal,
in Luppold v. Hanlon, 495 Mass. 148 (2025). In that case, the
court upheld almost this exact instruction against an identical
4 challenge. Id. at 158-162. It concluded that the instruction
articulates the fundamentally correct legal principle of "but
for" causation and forecloses the arguments raised by the
defendants here. Id.
In this case, of course, there may have been some juror
confusion as indicated by the jury question. The judge's answer
to that question, to which there was no objection, was adequate
to clarify that regardless of the jury's understanding of the
instruction as given, the entire passage was about "but for
causation," which, the judge conveyed, would be clear to the
jury with careful examination of its text. There was,
therefore, no error in the instruction or the answer to the jury
question.
2. Denial of a directed verdict. The defendants argue
also that the judge erroneously denied their motions for a
directed verdict on the claim of informed consent. The
defendants' claim that this case is like Roukonakis v. Messer,
63 Mass. App. Ct. 482, 484 (2005), where a claim of informed
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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-310
STEPHEN G. MCDONOUGH, personal representative,1
vs.
SAYUJ PAUDEL & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This is a wrongful death action brought by the plaintiff,
Stephen McDonough, as personal representative of the estate of
Nancy McDonough, against Sayuj Paudel, M.D., and his employer,
Massachusetts Acute Care Specialists, P.C.3 The plaintiff
alleged, among other things, that the defendants had been
1 Of the estate of Nancy McDonough.
2 Massachusetts Acute Care Specialists, P.C.; additional defendants, Michael Cohen, Salis Midha, and Salis K. Midha M.D., P.C., were dismissed by stipulation of the parties prior to trial.
3 There was a stipulation that the defendant employer would be vicariously liable in the event of a finding adverse to the defendant, Dr. Paudel. Therefore, the jury were not asked to determine separately the liability of the employer. negligent and that they had failed to obtain informed consent to
treatment from the decedent.
After a jury trial, the jury found that Dr. Paudel was
negligent in his care of the decedent, that he had failed to
obtain her informed consent to treatment, and that both of these
were causes of her death. Accordingly, the jury awarded damages
for wrongful death in the amount of $3,400,000. The judge added
twelve percent prejudgment interest, see G. L. c. 229, § 11;
G. L. c. 231, § 6B, in the amount of $3,227,161, and entered
judgment in the combined amount of $6,627,161. The defendants
have now appealed.4 For the reasons described below, we affirm.
1. The jury instruction relating to the proper standard of
causation. The judge instructed the jury based upon the model
jury instructions in relevant part as follows:
"You must ask would Nancy McDonough's death have happened without defendant's negligence. The defendant caused Nancy's death if the death would not have occurred absent, that is, but for[,] the defendant's negligence. If the defendant's negligence had an impact on plaintiff's death, then it caused that death. But if the negligence had no impact on plaintiff's death and the same harm would have happened anyway, then the defendant did not cause Nancy McDonough's death."
4 The defendants also appealed from the denial of their postjudgment motion for judgment notwithstanding the verdict, to set aside the verdict, to order a new trial, and/or to amend the judgment.
2 Although this is the focus of the defendant's concern,
there was a portion of the judge's instructions immediately
following, which we quote for completeness's sake.
"Often an injury or harm has more than one cause. If defendant's negligence was one of those causes, that is enough. Plaintiff does not have to show that defendant's negligence was the only cause of Nancy McDonough's death, nor does plaintiff have to show that the negligence was the largest or main cause of Nancy's death[,] as long as the death would not have occurred without the defendant's negligence."
After deliberations commenced, the jury came back with one
question. In its entirety, it read:
"We are requesting clarification of causation. Regarding the instructions of causation on pg. 7 & 8[.] [sic.] There seems to be contradicting statements/questions for us to answer.
"For [e]xample:
"- pg 7 - 'The Defendant caused Nancy's death if the death would not have occurred absent, that is, but for, the Defendant's negligence.'
"This seems to contradict the following sentence:
"'If a defendant[']s negligence had an impact on plaintiff's death, then it caused that death.'
"How should we reconcile these seemingly conflicting instructions?"
After discussion with counsel, the judge provided the
following response to the jury's question:
"Thank you for your question.
3 "I appreciate that you perceive a conflict in the 'causation' instructions, but I do not believe there is an actual conflict.
"Please read all the instructions, each sentence -- each, sentence, each paragraph -- together, and apply all the principles as you determine whether the alleged negligence in this case caused Mrs. McDonough's death.
"The second paragraph at the bottom of page 7 (beginning 'you must ask') identifies the requirement of 'but for' causation. The next paragraph at top of page 8 (beginning 'Often, an injury or harm . . .') explains that there may be more than one 'but for' cause of an injury. You should apply both those concepts, and follow all the causation instructions, considered together."
The defendants now argue on appeal that the use of the word
"impact" in the middle of the first paragraph in the judge's
earlier quoted instructions suggests that "'less than' true but-
for causation" may be a basis for a finding of liability. They
argue that with the added use of the word "impact," a jury might
conclude that negligence having some effect or impression, such
as making the harm more likely, could support a finding of
liability. They also argue that the way the instruction is
written, it may suggest that the jury could find liability
regardless of "but for causation" unless the negligence had no
impact at all on the situation.
This case is controlled by the Supreme Judicial Court's
decision earlier this year, during the pendency of this appeal,
in Luppold v. Hanlon, 495 Mass. 148 (2025). In that case, the
court upheld almost this exact instruction against an identical
4 challenge. Id. at 158-162. It concluded that the instruction
articulates the fundamentally correct legal principle of "but
for" causation and forecloses the arguments raised by the
defendants here. Id.
In this case, of course, there may have been some juror
confusion as indicated by the jury question. The judge's answer
to that question, to which there was no objection, was adequate
to clarify that regardless of the jury's understanding of the
instruction as given, the entire passage was about "but for
causation," which, the judge conveyed, would be clear to the
jury with careful examination of its text. There was,
therefore, no error in the instruction or the answer to the jury
question.
2. Denial of a directed verdict. The defendants argue
also that the judge erroneously denied their motions for a
directed verdict on the claim of informed consent. The
defendants' claim that this case is like Roukonakis v. Messer,
63 Mass. App. Ct. 482, 484 (2005), where a claim of informed
consent was not permitted to go forward because "the question of
informed consent [could not] be separated from the question of
negligence." In that case, the negligence claim was based on
the doctor's failure to properly read a mammogram, detect a
potentially cancerous abnormality, and pursue further testing,
5 and the informed consent claim was also based on his failure to
properly read the mammogram and disclose to the plaintiff the
fact that she had a potentially cancerous abnormality. Id. at
482-486. The panel, therefore, concluded that these two claims
required the jury to find "substantially the same facts" and
that, where the plaintiff claims the doctor "fail[ed] to
diagnose and to recognize the need for further tests," such a
failure "gives rise to a claim for negligence but not to a claim
on principles of informed consent." Id. at 485-486, 487.
Unlike that case, however, the informed consent claim here
did not require the jury to find that Dr. Paudel should have
disclosed something that he did not know because of his own
negligence; he testified that he was aware of the need to give
patients with atrial fibrillation, like the decedent,
anticoagulants. Instead, the informed consent claim here
involved a factual dispute about whether, when Dr. Paudel
decided to take the decedent off the prescription medicine
Lovenox, the anticoagulant she had been receiving, due to
concerns about her kidneys, he told the decedent about a
specific alternative treatment -- IV heparin -- and whether the
decedent, having been informed of its availability and all other
material information, declined such treatment. The facts the
jury needed to find to find Dr. Paudel liable for failing to
6 obtain informed consent were different than those they needed to
find to find him negligent; Roukonakis, supra, therefore, is
inapplicable.
3. Cross-examination. The defendants argue that the judge
improperly denied cross-examination of the plaintiff's expert
with the trial testimony of a prior witness, the patient's
treating nephrologist. The defendants' argument, however,
relies on the premise that the nephrologist testified that, due
to the decedent's severely reduced kidney function, adequate
Lovenox remained in her body to anticoagulate her,
notwithstanding the failure of Dr. Paudel to prescribe the
proper anticoagulatory dose of IV heparin.
Even leaving aside the fact that the decedent did have a
stroke, indicating inadequate anticoagulation, the nephrologist
did not testify as the defendants would have it. He stated only
that the Lovenox that had previously been administered to the
decedent "most probably" remained in her system after her
providers discontinued it because of her kidney issues; he
offered no opinion as to how much Lovenox remained in her
system, how long it would have remained, or whether this
residual Lovenox would have been enough to effectively
anticoagulate her. Therefore, there was no abuse of discretion
7 or other error in not permitting the cross-examination sought by
the defendants.
4. Defendants' causation expert. The defendants argue
that the judge erred in excluding testimony by their causation
expert, Joseph Weinstein, M.D., that he believed that IV heparin
should not have been given to the decedent for three reasons.
On cross-examination, Dr. Weinstein was asked if he agreed
that IV heparin was an alternative method of preventing blood
clots from forming in the decedent's heart after Lovenox had
been discontinued. Dr. Weinstein began to explain why he
thought administering IV heparin would not have been appropriate
in the circumstances, but the plaintiff's counsel interrupted
him, indicating that this was not responsive to the question he
had asked. The defendant's counsel asked that Dr. Weinstein be
allowed to finish his answer. The judge ruled that, given what
he had been asked, Dr. Weinstein would not be allowed to explain
why he thought IV heparin was inappropriate at that time, but
that the defendant's counsel could cover this on redirect
examination. The plaintiff's counsel moved on from this topic,
however, so Dr. Weinstein never answered whether IV heparin was
an alternative way to prevent blood clots from forming in the
decedent's heart. On redirect, when the defendant's counsel
tried to ask Dr. Weinstein why he thought administering IV
8 heparin would have been inappropriate, the plaintiff's counsel
objected, arguing that this opinion had not been previously
disclosed and that he had not opened the door to this testimony.
The judge then conducted a voir dire during which Dr. Weinstein
testified that he did not think the decedent should have been
given IV heparin for three reasons: (1) at the time, the
decedent had both kidney failure and abnormal liver function,
and heparin is metabolized by the liver; (2) the decedent needed
a cardiology procedure, and she needed to be off anticoagulation
to undergo this procedure; and (3) the decedent had declined IV
heparin when it was offered. After hearing this proposed
testimony, the judge decided to exclude it, finding that the
first reason had not been disclosed and that the second and
third reasons had already been covered in prior testimony.
Given that Dr. Weinstein did not testify on cross-
examination that IV heparin would have been an alternative way
of preventing blood clots from forming in the decedent's heart,
the plaintiff's counsel did not open the door to Dr. Weinstein's
opinion about why IV heparin would have nonetheless been
inappropriate in these circumstances. Accordingly, there was no
error in the judge's decision to exclude this testimony.5
5 The defendants also argue that Nancy McDonough was well aware of the risk of stroke while off anticoagulation medication, and that therefore, as a matter of law, the claim of
9 5. Prejudgment interest. Finally, the defendants argue
that the award of statutory prejudgment interest should be
tolled because the trial was delayed due to the COVID-19
pandemic (COVID).
Prejudgment interest is statutorily mandated, see G. L.
c. 229, § 11, and there is no support for the suggestion that it
should be tolled by any aspect of the delay caused to some
trials by the emergency orders issued during the pandemic. Nor
is there any basis for such tolling since prejudgment interest
is designed to compensate the plaintiff for the time during
which the defendant had possession of the money that was due the
plaintiff and was able himself to earn interest on that money.
See Greene v. Phillip Morris USA Inc., 491 Mass. 866, 881
(2023). Delay for any reason simply extends that time.6
lack of informed consent fails. A patient's general knowledge about the risks of the absence of adequate anticoagulation is not "sufficient information to enable the patient to make an informed judgment" about her treatment, Harnish v. Children's Hosp. Med. Ctr., 387 Mass. 152, 155 (1982), therefore Dr. Paudel still had a duty to disclose "information about that risk that he reasonably should have recognized [the decedent] would consider important." Precourt v. Frederick, 395 Mass. 689, 694 (1985).
6 Of course, the statutory interest is fixed at twelve percent, see G. L. c. 231, § 6B, which is higher than currently available interest rates. See, e.g., Board of Governors of the Fed. Rsrv. Sys., Selected Interest Rates (Daily) - H.15, https://www.federalreserve.gov/releases/h15/. The defendants raise no claim based on that discrepancy, a claim, which is in any event, foreclosed by Greene, 491 Mass. at 884-885.
10 In any event, this is not an appropriate case even to raise
the defendant's claim, as there is no evidence that any of the
delay in this case was attributable to the Supreme Judicial
Court's emergency COVID orders. Before the pandemic started,
the trial date had already been set for almost two years later,
on September 20, 2021. The delay until then was obviously not
caused by the pandemic. And, by the time that date was
continued to January 8, 2024, there were no longer any COVID-
related restrictions on jury trials in effect. See Seventh
Updated Order Regarding Court Operations Under the Exigent
Circumstances Created by the COVID-19 (Coronavirus) Pandemic,
No. OE-144 (July 1, 2021),
https://www.mass.gov/doc/repealed-sjc-seventh-updated-order-
regarding-court-operations-under-the-exigent-circumstances-
created-by-the-covid-19-coronavirus-pandemic/download.
There is no evidence in the record why the judge continued
the case until January, 2024. The defendants, therefore, have
pointed to no evidence that COVID had anything to do with the
further extension.7
7 The defendants' postjudgment motion speculates that the further continuance may have been due to the reduced availability of jurors in the aftermath of the pandemic, but there is nothing in the record to support this theory. Rather, the motion indicates, in a footnote, that scheduling conflicts of counsel may have played a role.
11 In the absence of any evidence that delay in this case was
caused by the pandemic or the pandemic-related orders, even if
prejudgment interest were to be tolled for either of those
reasons, the defendants have not shown that they would be
entitled to the benefit of any such tolling.
Judgment affirmed.
Order entered February 28, 2024, denying motion for postjudgment relief affirmed.
By the Court (Rubin, Henry & Walsh, JJ.8),
Clerk
Entered: July 29, 2025.
8 The panelists are listed in order of seniority.