STEVEN LUPPOLD v. SUSAN HANLON & Others

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 2025
• Docket: SJC-13577
• Status: Published

Opinion

SUPREME JUDICIAL COURT

STEVEN LUPPOLD vs. SUSAN HANLON & others[1]

Docket:	SJC-13577
Dates:	October 7, 2024 - January 3, 2025
Present:	Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.
County:	Middlesex
Keywords:	Medical Malpractice, Appeal, Relief from judgment. Negligence, Medical malpractice, Causation. Contract, Settlement agreement. Evidence, Cross-examination, Bias. Witness, Cross-examination, Bias. Practice, Civil, Instructions to jury, Interest, Waiver. Interest. Damages, Interest. Judgment, Relief from judgment, Interest. Waiver.

      Civil action commenced in the Superior Court Department on May 5, 2016.

      The case was tried before C. William Barrett, J., and a motion for judgment notwithstanding the verdict, to set aside the verdict and order a new trial, or for remittitur was heard by him.

      The Supreme Judicial Court granted an application for direct appellate review.

      Myles W. McDonough (Christopher M. Reilly also present) for Susan Hanlon.

      Adam R. Satin (Robert M. Higgins &  Peter A. Ghattas also present) for the plaintiff.

      KAFKER, J.  A jury awarded the plaintiff, Steven Luppold, $20 million in this medical malpractice case after finding the negligence of three of the defendants -- Susan Hanlon, a registered nurse (RN); Charles Loucraft, a physician assistant (PA); and Carlos Flores, a nurse practitioner (NP) -- caused an above the knee amputation of his left leg.  On appeal, the defendant, Hanlon, claims that the trial judge abused his discretion in not allowing cross-examination regarding a "high-low" settlement agreement entered into by Loucraft and Flores, who both testified at trial.[2]  Hanlon also takes issue with parts of the jury instruction given on factual causation, contending they did not comply with our decision in Doull v. Foster, 487 Mass. 1 (2021).  In addition, Hanlon challenges the trial judge's denial of a motion for judgment notwithstanding the verdict and seeks to invalidate the assessment of prejudgment interest on damages awarded to the plaintiff for future pain and suffering.

      For the reasons discussed infra, we discern no abuse of discretion in the trial judge's decision not to allow cross-examination on the high-low settlement agreement, and we find no error in the jury instruction given on factual causation or the trial judge's denial of the motion for judgment notwithstanding the verdict.  Finally, we uphold the award of prejudgment interest.

      1.  Factual background.  We summarize the facts that could have been found by the jury, reserving certain facts for later discussion of the legal issues to which they particularly relate.  The plaintiff, then thirty-five years old, visited the emergency department (ED) of Lowell General Hospital (Lowell) on March 7, 2015.  The plaintiff told the staff member at the registration desk that his foot was painful, cold, and turning blue.  The plaintiff was then evaluated by a triage nurse, Carla Crocker, RN.  As triage nurse, Crocker evaluated patients to determine whether they should be seen in the "primary" part of the ED -- the side for more serious cases, which is staffed by physicians -- or the "ambulatory" part of the ED, for less acute cases.  The plaintiff told Crocker that he had back pain and numbness in his left leg and that his left foot was cool to the touch, painful, and turning blue.  Crocker requested the plaintiff remove his shoe and sock, felt the plaintiff's foot, and asked the plaintiff if he had stuck his foot in a snowbank, which the plaintiff denied doing.  Crocker determined that the plaintiff would be seen by a provider from the "ambulatory" side of the ED.  Several minutes later, the plaintiff was seen by Loucraft, who did not read the triage note written by Crocker before or during his evaluation.  Loucraft reportedly did a physical examination of the plaintiff, including his foot.  Loucraft described the plaintiff's skin as warm.  Loucraft diagnosed the plaintiff with sciatica, prescribed a number of pain medications and muscle relaxants, and told the plaintiff someone else would come in and discharge him. 

      Hanlon discharged the plaintiff shortly thereafter.  Hanlon summarized the following for the plaintiff:  he had come in with a blue foot, no testing had been done, and the plaintiff was being discharged.  The plaintiff stated that his foot was still swollen and purple and asked Hanlon whether that made a difference.  Hanlon responded that the plaintiff would be discharged anyway and provided him patient education materials.  Both Hanlon and the plaintiff then signed the discharge paperwork.

      Five days later, on March 12, the plaintiff called his primary care provider, Lahey Hospital & Medical Center (Lahey).  When a doctor from Lahey returned his call the next day, the plaintiff described his March 7 visit to Lowell and reported left foot discoloration and persistent numbness.  The doctor encouraged the plaintiff to go to the nearest ED immediately to be evaluated.

      On that day, March 13, the plaintiff again visited the Lowell ED.  The plaintiff was brought into the ED in a wheelchair by a friend, and the plaintiff reported at registration that he had left foot pain.  The plaintiff was then evaluated by Stefanie Busa, RN, a triage nurse.  The plaintiff told Busa his back and upper leg pain had improved but that he had "severe" pain in his left ankle and that he had run out of muscle relaxants.  Busa examined the plaintiff's bare foot, which was discolored and swollen, and ultimately assigned him to the ambulatory side of the ED. 

      On the ambulatory side, Hanlon did an initial assessment of the plaintiff, and a few minutes later, the plaintiff was evaluated by Carlos Flores, NP.  The plaintiff was in a great deal of pain and had difficulty concentrating, so his friend frequently spoke on his behalf during the evaluation.  Flores did not read the triage note made by Busa, review the records from the plaintiff's March 7 visit, or examine the plaintiff's foot.  Flores diagnosed the plaintiff with radiculopathy, peripheral edema, chronic low back pain, and hypertension.  Shortly thereafter, Flores saw the patient a second time to discuss his high blood pressure and prescribed pain medication, muscle relaxants, and high blood pressure medication.  Hanlon again discharged the plaintiff with patient education materials related to these conditions.

      On March 17, the plaintiff called Lahey and reported that his left foot was intermittently painful, numb, discolored, and cool to the touch.  Lahey scheduled the plaintiff for an evaluation that same afternoon.  Dr. Robert Brew examined the plaintiff's foot and ordered an ultrasound.  Brew diagnosed the plaintiff with arterial thrombosis and deep vein thrombosis, and Brew himself walked the plaintiff to the ED in a wheelchair, where the plaintiff was admitted.  On the next day, March 18, the plaintiff underwent an above-the-knee amputation of his left leg.

      2.  Procedural history.  On March 16, 2018, the plaintiff filed an amended complaint alleging that Crocker, Busa, Loucraft, Flores, and Hanlon had failed to satisfy the applicable standards of care with respect to detecting and treating his blood clots and that his amputation was the result of their negligence.[3] 

      A jury trial was held in the Superior Court from March 7 to March 24, 2023.  The plaintiff's nursing expert, Susan Smith, a doctor of nursing practice, testified that Hanlon fell below the standard of care of the average ED nurse on March 7 when she failed to tell Loucraft about the plaintiff's foot pain and discoloration, which can signal a very serious condition.  Smith testified that Hanlon again fell below the applicable standard of care on March 13 when she failed to conduct "[a] pulse evaluation and a further evaluation of the foot," ankle, and leg, and failed to communicate with the mid-level provider, Flores, before discharging the plaintiff.  Loucraft testified that he was not aware that the plaintiff had complained of left foot pain and discoloration because he had not read the triage note generated by Crocker.  Loucraft further testified that had Hanlon reported those complaints to him, he would have treated the symptoms as a clot "until . . . prove[n] otherwise" and either ordered an ultrasound or alerted an attending physician.  The plaintiff's emergency medicine expert likewise testified that the care provided to the plaintiff by both Loucraft and Flores fell below the relevant standards of care.  After the conclusion of the plaintiff's case-in-chief, Hanlon, Crocker, and Busa moved for a directed verdict, which the trial judge denied.  Hanlon's nursing expert testified that Hanlon acted within the standard of care as discharge nurse on both visits and when she evaluated the plaintiff during the March 13 visit.  The nurses renewed their motion for a directed verdict at the close of the evidence, which the trial judge again denied.

      At the charge conference, the defendants objected to the use of the term "impact" in the model jury instructions on factual causation and proposed revisions that would eliminate such language.  The trial judge denied this request, opting instead to give a jury instruction that both tracked the model jury instructions and included additional language employed by the judge in a prior medical malpractice case.  The defendants renewed their request for the revised jury instruction after the parties gave closing arguments and the jury were instructed, but were unsuccessful.

      On March 24, the jury returned a verdict against Hanlon, Loucraft, and Flores, in the amount of $20 million.  Prejudgment interest was applied to the verdict to yield a total judgment of $28,870,400.  Hanlon subsequently moved for judgment notwithstanding the verdict, to set aside the verdict and order a new trial, or for remittitur.  After a hearing, the trial judge denied Hanlon's motion.

      Hanlon timely appealed from the judgment entered against her and the trial judge's order denying her posttrial motion.  We allowed Hanlon's application for direct appellate review.

      3.  Discussion.  Hanlon claims she is entitled to relief based on several alleged errors by the trial judge.  We consider each claim in turn.

      a.  The high-low agreement.  Hanlon contends that the judge erred by not allowing her counsel to cross-examine Loucraft regarding a high-low settlement agreement Loucraft entered into during trial.  A high-low agreement caps a defendant's liability while ensuring that the plaintiff receives a minimum payment amount, regardless of the outcome.  See David v. Kelly, 100 Mass. App. Ct. 443, 446 (2021); Serico v. Rothberg, 234 N.J. 168, 172 (2018).[4]

      In the instant case, we have been presented with no details regarding the terms of the high-low agreement.  What we do know is that at some point after Loucraft testified for the first time, but before Loucraft took the stand in his own case-in-chief, both he and Flores entered into a high-low agreement with the plaintiff.  When Loucraft retook the stand, Hanlon's counsel sought to cross-examine Loucraft about the high-low agreement.  The following sidebar then took place:

Counsel for Hanlon:  "The reason I asked to be seen, Your Honor, is that the original, more the prior testimony in getting him to [sic] bias of this witness and giving those opinions against the nurses because of his circumstance with his [insurance] company and with a high-low agreement I'd like to be able to inquire of that."

The judge:  "He gave this testimony at a deposition three years before any high-low agreement?"

Plaintiff's counsel:  "I don't even know what the high-low agreement is about, but I don't think that's relevant in any way."

      The judge:  "I'll let [counsel for Loucraft] --"     

Counsel for Loucraft:  "Yeah, I don't either, Your Honor.  I don't know what the relevance is.  I mean, his testimony's been consistent with what he said in his deposition.  None of it's different."

Counsel for Hanlon:  "It is different from the deposition, and it's changed because of [sic] the insurer is bankrupt."

Counsel for Loucraft:  "Wait a minute.  Well, then, I think you have a right to cross-examine him if he says something different on his examination[.]  [T]he insurers just so the record's clear . . . rehabilitation is not bankrupt."

Counsel for Hanlon:  "Right."

Counsel for Loucraft:  "And yeah, I mean, there is.  There's a high-low agreement.  I don't -- I'm certainly happy to share that with the court, but --"

The judge:  "We're not going to get into any of that." 

Counsel for Loucraft:  "Yeah, and I wouldn't ask that you should." 

The judge:  "And I don't think they're going to[.]"

      On appeal, Hanlon seeks to flesh out the basis for such cross-examination.  She argues that she should have been allowed to cross-examine Loucraft regarding bias caused by the high-low agreement.  That bias, she contends, is evident in Loucraft's changed testimony, although she did not provide any specifics on how his testimony changed to the trial judge at sidebar or at any time during trial.[5]  Further, she asserts, albeit only in her posttrial motion and appellate brief, that precluding cross-examination caused her actual prejudice because her counsel was unable to explain why the plaintiff was motivated to alter his testimony and why plaintiff's counsel was motivated to "vilify" Hanlon and praise a settling codefendant during his closing argument.[6]  We disagree.

      "We review a trial judge's evidentiary decisions under an abuse of discretion standard."  N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013).  "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (citation and quotation omitted).  L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).  The test when evaluating whether the exclusion of evidence rises to prejudicial error is "whether the proponent of erroneously excluded, relevant evidence has made a plausible showing that the trier of fact might have reached a different result if the evidence had been before it."  DeJesus v. Yogel, 404 Mass. 44, 48-49 (1989).

      The general rule is settlement agreements are not admissible to "prove either liability or the amount of a claim."  Morea v. Cosco, Inc., 422 Mass. 601, 604 (1996).  See Mass. G. Evid. § 408(a) (2024).  This is the general rule because settlement of litigation is to be encouraged, and disclosing such agreements risks skewing jurors' required analysis of the parties and their respective liability, leading jurors, for example, to consider such settlement agreements as an admission of liability or alternatively to conclude that a liability determination is not necessary because the injured plaintiff has already been compensated.  See, e.g., Zucco v. Kane, 439 Mass 503, 509 (2003) (evidentiary rule precluding offers and acceptance of settlement agreements is "designed to encourage settlements by limiting the collateral consequences of a decision to compromise"); Cottam v. CVS Pharmacy, 436 Mass. 316, 328 (2002) (affirming admission of agreement but noting "admission of this evidence created the risk that the jury would perceive the settlement by [a party that settled before trial] as an admission of his liability"); Morea, supra (general rule barring disclosure of settlements to prove liability or amount of claim "will tend to encourage a plaintiff to settle with one tortfeasor, knowing that the case against another tortfeasor will not be prejudiced by evidence of the settlement").  Evidence of settlement agreements may, however, in appropriate circumstances, be admitted to demonstrate that a testifying witness "may have harbored bias" against a party.  Cottam, supra.

In the instant case, it appears Hanlon sought to cross-examine Loucraft regarding the high-low agreement, claiming it biased him and caused him to change his testimony.  How his testimony changed, or why it would change based on a high-low agreement, is, however, not in any way evident based on the trial court record.  Loucraft had previously testified in a deposition and earlier at trial, both prior to entering into the agreement.  When confronted with the trial judge's assertion that Loucraft had testified to the same thing in his deposition years prior, Hanlon's counsel responded only with the conclusion that "[i]t is different from the deposition, and it's changed because of [sic] the insurer is bankrupt."[7] 

In fact, the record before us shows no such material change in Loucraft's testimony.[8]  Loucraft consistently testified -- both before he entered into the high-low agreement and later in his own case-in-chief, after he entered into the high-low agreement -- that the nurses bore responsibility for communicating important information about the plaintiff to him, and that he would likely have ordered follow-up testing if Hanlon had informed him that the plaintiff's foot was discolored and cold.  The only instance in which his testimony did change –- he testified on March 10, 2023, that he did not recall whether he read the triage note, but admitted on March 21 that he did not review it –- involved Loucraft taking full responsibility for his own error, rather than shifting blame to Hanlon. 

At no point did Hanlon's counsel make an offer of proof, request a voir dire of the witness, identify for the court any specific instances of changed testimony, or explain how the existence of a high-low agreement would be relevant to the alleged changes.  We do not even know the terms of the high-low agreement in this case or whether they were unusual in any respect.  Such agreements often simply cap liability to the amount of insurance.  See, e.g., David, 100 Mass. App. Ct. at 446 (agreement guaranteed plaintiff between $150,000 and $1 million, where $1 million was defendants' policy limit); Xu vs. Donovan, Mass. Super. Ct., No. 1584CV01625BLS2 (Suffolk County June 2, 2017) (agreement guaranteed at least $300,000 but no more than $2.5 million, defendants' insurance cap, from each defendant); Wright vs. Kelleher, Mass. Super. Ct., No. 021589A (Worcester County Sept. 10, 2008) (agreement set "low" and "high" at $1.3 million, defendant's policy limit).[9]

In sum, Hanlon failed to demonstrate that the general rule against admission of settlement evidence should not apply in the instant case.  The existence of a high-low settlement agreement of unknown terms does not alone establish bias.

Hanlon also attempts to turn this evidentiary issue into a constitutional one, claiming her inability to cross-examine regarding the high-low agreement violated her right to a jury trial provided in art. 15 of the Massachusetts Declaration of Rights.  She contends this right was violated when she was denied the ability to cross-examine regarding bias.  Of course, Hanlon's counsel did cross-examine Loucraft, and was allowed to explore bias in other respects, just not in regard to the high-low agreement, for the reasons discussed above.  None of the cases Hanlon cites supports her suggestion that precluding cross-examination regarding a high-low settlement agreement violates any constitutional rights in these circumstances.  Cf. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014) (constitutional right to confront and cross-examine witnesses in criminal case is "not absolute . . . .  A defendant must make a plausible showing of alleged bias, with a factual basis for support" [quotation and citations omitted]).

Nor are we persuaded by Hanlon's argument that the majority of other jurisdictions allow at least some cross-examination on high-low settlement agreements.  Many of the cases on which Hanlon relies involve "Mary Carter agreements," in which defendants who enter into such agreements and remain in the case not only "guarantee the plaintiff a certain minimum monetary recovery regardless of the outcome of the lawsuit, [but also] have their liability reduced in direct proportion to the increase in the liability of the nonagreeing defendant or defendants."  Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 131 (1998).  A settlement agreement directly incentivizing and rewarding blame-shifting is different from a settlement agreement that only defines a minimum and maximum recovery.  Although codefendants often have some incentive to deflect responsibility, Mary Carter agreements establish a direct payment mechanism that rewards such blame-shifting, dollar for dollar.  Such agreements raise a markedly different set of concerns.[10]  

In the instant case, Hanlon has not provided any evidence that the high-low agreement provided any such incentive.  As explained above, she did not request a voir dire, or make an offer of proof suggesting such untoward financial blame-shifting incentive.

      For all these reasons, we discern no abuse of discretion by the trial judge in denying cross-examination on the high-low agreement in these circumstances.

      b.  Jury instructions.  On appeal, Hanlon renews her argument that the jury instruction given by the trial judge regarding factual causation was erroneous in light of our decision in Doull, 487 Mass. 1.  "We review objections to jury instructions to determine if there was any error and, if so, whether the error affected the substantial rights of the objecting party" (citation omitted).  Dos Santos v. Coleta, 465 Mass. 148, 153-154 (2013).  "'A trial judge has wide latitude in framing the language to be used in jury instructions' as long as the instructions adequately explain the applicable law."  Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009), quoting Jacobs v. Pine Manor College, 399 Mass. 411, 414 (1987).  In making this determination, we consider "the adequacy of the instructions as a whole, not by fragments."  Doull, supra at 6, quoting DaPrato v. Massachusetts Water Resources Auth., 482 Mass. 375, 383 n.11 (2019).

At trial, the judge gave the following instruction to the jury as to factual causation:

"The defendant caused injuries if the injuries would not have occurred without, that is but for, that defendant's negligence.  To decide this, you must ask would the same harm have happened without that defendant's negligence.  In other words, did the negligence make a difference?

"If a defendant's negligence had an impact on Steven Luppold's injuries, then it caused those injuries.  But if the negligence had no impact on Steven Luppold's injuries and the result would have happened anyway, then that defendant did not cause the injuries."

This language largely tracked that of the Superior Court's model jury instruction on causation adopted after our decision in Doull.[11]  See Superior Court Model Jury Instructions, Medical Malpractice 6-8 (May 2021).

In Doull, 487 Mass. at 16-17, we adopted the revised approach to causation in the Restatement (Third) of Torts and determined that, in "negligence cases involving multiple alleged causes of the harm" such as this case, "a but-for standard, rather than a substantial factor standard, is the appropriate standard for factual causation."  See Greene v. Philip Morris USA Inc., 491 Mass. 866, 875-877 (2023); Restatement (Third) of Torts:  Liability for Physical and Emotional Harm §§ 26 comment j, 27 comment b (2010).  Among our motivating concerns in doing so was the risk that, under the substantial factor test, the jury could alternatively apply a "more demanding standard than a traditional but-for standard" or "skip the factual causation inquiry altogether."  Doull, supra at 14-15.  We therefore assess whether the jury instructions in this case properly imparted "but-for" causation to the jury.

Hanlon argues that the jury instruction violated Doull by expanding factual causation to include "two separate things," one being "but-for" causation and the other being "impact" in some other respect.  What that other respect might be is, unfortunately, unclear, although Hanlon suggests "impact" could mean that the negligence may have some "effect" or "impression," such as making the harm "more likely."  In particular, she focuses on the sentence in the instructions that provided:  "If the negligence had no impact on [the plaintiff's] injuries and the result would have happened anyway, then that defendant did not cause the injuries."  She emphasizes that the word "and" to separate the clauses in this sentence conveyed two different concepts of factual causation.  We disagree.

Hanlon's interpretation ignores the instructions as a whole, which conveyed a "but-for" causation requirement as explained in Doull, 487 Mass. at 6, citing DaPrato, 482 Mass. at 383 n.11.  See Laramie v. Philip Morris USA Inc., 488 Mass. 399, 417 (2021) ("We do not review an individual instruction in isolation"); Selmark Assocs. v. Ehrlich, 467 Mass. 525, 547 (2014).  The jury instructions given immediately before the sentence at issue more than sufficiently communicated the necessity and meaning of "but-for" causation.  The preceding two sentences, for example, explicitly used the term "but-for" and employed language approved of and used in Doull.[12]  See Doull, supra at 11 n.10, 14-15, 17.  The sentence at issue, as discussed in more detail below, explained the same "but-for" causation requirement, using alternative, plain-language terminology.  When read as a whole, then, the challenged instructions in this case more than adequately conveyed "but-for" causation.  See id. at 6, 16-17. 

We discern no merit to Hanlon's argument that the sentence she highlights added another means of proving factual causation.  Neither the word "impact" nor the word "and," alone or in combination, supports such an interpretation.  As the plaintiff correctly points out, and as the model jury instructions reference, see Superior Court Model Jury Instructions, Medical Malpractice 7 nn.18-19 (Dec. 2024), the inclusion of the word "impact" tracks language we used in Doull:  "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" (emphasis added).  Doull, 487 Mass. at 11.  That the trial judge, in keeping with the model jury instructions, opted to use this terminology to further explain "but-for" causation in language[13] that may be more familiar to, and more easily understood by, jurors does not in any way negate the fundamentally correct legal principle communicated therein.[14]  See Selmark Assocs., 467 Mass. at 547, quoting Mahoney v. Gooch, 246 Mass. 567, 571 (1923) ("A judge should instruct the jury fairly, clearly, adequately, and correctly . . ."); Kelly, 454 Mass. at 316.  See also Massachusetts Superior Court Guidelines for Drafting Model Jury Instructions, Using the Jury Instruction Templates, and Adapting Model Instructions for Your Case § 1.1, at 2 (Mar. 2021) (counselling that courts "serve justice better" by providing instructions "that jurors of all backgrounds can actually absorb and follow").

      The use of the conjunction "and" in this context also does not suggest two separate means of proving factual causation.  It is rather an attempt, again, to use plain language to further clarify the meaning of "but-for" causation using alternative terminology, such as "no impact" and "the same harm," more familiar to the average juror.  Although we think this is clear in the existing jury instructions, we believe a minor revision to the instructions would make the point even more expressly.  Accordingly, the sentence at issue in the current model jury instructions should be modified, as indicated by the underlined text, from:

"If [defendant's] negligence had an impact on [plaintiff's]

injuries (by causing them or worsening them), then it caused those injuries.  But if the negligence had no impact on [plaintiff's] injuries and the same harm would have happened anyway, then [defendant] did not cause the injuries."

to:

injuries (by causing them or worsening them), then it caused those injuries.  But if the negligence had no impact on [plaintiff's] injuries, meaning that the same harm would have happened anyway, then [defendant] did not cause the injuries."

c.  Denial of posttrial motion.  Hanlon raises two other grounds for relief, which we address briefly here.  First, Hanlon argues that she was entitled to a judgment notwithstanding the verdict (judgment n.o.v.) because the plaintiff's theory of recovery required that Hanlon, an RN, "supervise medical diagnoses and orders," which are "undertakings that [she] [had] no authority or license to engage in," and must instead have been made by more highly credentialed providers "who [did] have such authority and licensure."  In Hanlon's view, the jury's verdict against her was inconsistent with Massachusetts statutes and regulations, which "sharply cabin[]" the "[s]cope of practice of RNs . . . compared to that of PAs and NPs."  Second, Hanlon argues that her duty to the plaintiff lapsed because there was a "shift" in the plaintiff's care from Hanlon to Loucraft and Flores, who then assumed that duty during the March 7 and March 13 visits, respectively.  Hanlon takes the position that this transfer of responsibility for the plaintiff's care operated as a "superseding intervening cause" and relieved her of liability as a matter of law.  We conclude that neither argument has merit based on the evidence and arguments presented in the instant case.

"When considering a motion for judgment n.o.v., the judge's task, taking into account all the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff" (quotation and citation omitted).  Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004). 

As a threshold matter, the plaintiff contends that Hanlon's first argument is waived.  The trial judge found as much when Hanlon argued, for the first time at the hearing on the motion for judgment n.o.v., that the duty the plaintiff ascribed to Hanlon exceeded her scope of practice as defined by State law.  See G. L. c. 112, § 80B; 244 Code Mass. Regs. §§ 3.00 (2021); 244 Code Mass. Regs. § 9.03(10) (2021).  Even assuming, arguendo, that this issue was preserved, Hanlon errs by framing the plaintiff's theory as a failure to supervise mid-level providers.  The plaintiff's claims did not require that Hanlon "supervise" Loucraft or Flores or act beyond the scope of her nursing practice.  Instead, the plaintiff's nursing expert testified that Hanlon should have identified that the plaintiff's complaint was inconsistent with the diagnosis, asked the plaintiff follow-up questions, and alerted Loucraft of the plaintiff's symptoms.  Loucraft likewise testified that Hanlon's failure to bring the plaintiff's foot pain and discoloration to his attention was "below the standard of care of a nurse in [the] emergency department."  He further testified that had she brought this to his attention, he would have ordered an ultrasound.  There was, therefore, ample support in the record for the plaintiff's claims that Hanlon should have recognized the clinical significance of the plaintiff's symptoms and alerted the attending mid-level provider accordingly.  Reviewing the evidence in the light most favorable to the plaintiff, a "jury reasonably could return a verdict for the plaintiff."  Phelan, 443 Mass. at 55.

Hanlon's second argument -- that she is relieved of liability as a matter of law because the plaintiff's care was transferred to Loucraft and Flores -- is likewise without merit.  The plaintiff provided evidence that had Hanlon alerted Loucraft to the plaintiff's complaints of serious symptoms, Loucraft would likely have taken different steps to evaluate the plaintiff and that the plaintiff's blood clot would have been identified earlier, obviating the need for the eventual amputation.  The nursing expert also testified that such actions were Hanlon's responsibility and failing to communicate with Loucraft fell below the standard of care of an RN in the ED.  Therefore, under the applicable causation standard, the jury could reasonably have concluded that Hanlon bore responsibility for the plaintiff's injuries, even though she was only one of several providers who saw the plaintiff on each visit.[15] 

d.  Prejudgment interest.  Finally, Hanlon asserts that the trial judge erred in assessing prejudgment interest on the plaintiff's award for future pain and suffering under G. L. c. 231, § 60K (§ 60K).  The jury in this case ultimately awarded the plaintiff $20 million in damages:  $10 million to compensate him for physical pain and suffering, mental pain and suffering, loss of enjoyment of life and of bodily function, and other items of general damages from the date of injury to the present; and $10 million to compensate him for the same damages into the future for thirty-three years.  Pursuant to § 60K, prejudgment interest was assessed on the full damages amount and totaled $8,870,400.  Section 60K states in relevant part:

"In any action for malpractice, negligence, error, omission, mistake or unauthorized rendering of professional services, other than actions brought under [G. L. c. 229, § 2], against a provider of health care, in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, there shall be added by the clerk of the court to the amount of damages interest thereon, at a rate to be determined as set forth below rather than the rate specified in [G. L. c. 231, § 6B], from the date of the commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law."

Relying largely on our holding in Conway v. Electro Switch Corp., 402 Mass. 385, 391 (1988), an employment discrimination case under G. L. c. 151B involving front pay, Hanlon argues that the statutory requirement for prejudgment interest does not apply to the $10 million to compensate the plaintiff for damages into the future, including the plaintiff's future pain and suffering.

The plaintiff asserts that Hanlon waived her challenge to the assessment of prejudgment interest by failing to raise it prior to her appeal.  The $20 million judgment against Hanlon, plus prejudgment interest, was initially entered on March 28, 2023, and was reentered with a corrected interest rate on March 30.  The record does not indicate that Hanlon objected to the assessment of prejudgment interest on the plaintiff's future damages at either juncture.  In Hanlon's posttrial motion filed on April 7, 2023, Hanlon moved for remittitur of the jury's $20 million damages award to the plaintiff on the basis that the award amount was "grossly excessive" and, in a footnote, challenged the date from which prejudgment interest was calculated.[16]  She did not, however, contend that prejudgment interest should not have been assessed on the $10 million dollars awarded to compensate the plaintiff for damages into the future, nor did her counsel make this argument at the posttrial motion hearing.

As the issue whether such damages should have been excluded from the calculation of prejudgment interest raises a substantive legal question, this argument should have been presented in the first instance to the trial judge.  In these circumstances, where a substantive legal issue is presented requiring judicial consideration, the assessment of prejudgment interest is not simply a "ministerial act" performed by a clerk.  O'Malley v. O'Malley, 419 Mass. 377, 381 (1995).  Here, however, the issue was not raised in Hanlon's posttrial motion to challenge the damages award, including her challenge to the calculation of prejudgment interest.  Ordinarily the failure to raise a legal argument at the trial level results in its waiver.  Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) ("An issue not raised or argued below may not be argued for the first time on appeal" [citation omitted]).  Cf. Greene, 491 Mass. at 877-878 (issue waived where defendant's counsel "made no substantive objection, or even reference to his prior objections" regarding jury instructions); Huber v. Huber, 408 Mass. 495, 497 (1990) (issue not preserved where party argued written report "itself was inadmissible hearsay" on appeal but, at trial, had argued report was inadmissible "because it was based on hearsay").

That said, in the context of prejudgment interest calculations, we have so far only found waiver when the argument is not raised in an original appeal.  See City Coal Co. of Springfield v. Noonan, 424 Mass. 693, 695 (1997), S.C., 434 Mass. 709 (2001) ("Whatever the merits of that argument [regarding the calculation of prejudgment interest], it is too late to make it . . . because the issue was apparent on the face of the judgment" and therefore "could have been raised" on defendant's first appeal); Frank D. Wayne Assocs. v. Lussier, 394 Mass. 619, 622 (1985) (declining to decide challenge to prejudgment interest where "[a]ny errors that the clerk made in computing the interest on the judgment entered after rescript [were] not in any way distinct from any errors that the parties could have raised in the initial appeal"); H1 Lincoln, Inc. v. South Washington St., LLC, 104 Mass. App. Ct. 256, 260-261, review granted to address question of postjudgment interest, 494 Mass. 1106 (2024) (prejudgment interest challenge waived where "the application of prejudgment interest . . . was apparent on the face of the judgments from which the defendant initially appealed").  As we have not previously clearly found waiver in the context before us, we exercise our discretion to consider the argument Hanlon makes here even though it was not presented below.

We can expeditiously address and resolve the merits of the legal issue Hanlon presents because the argument she raises here -- that the holding in Conway, a G. L. c. 151B employment discrimination case in which the court declined to award prejudgment interest on front pay, should be extended to personal injury claims -- has previously been rejected.  See Commonwealth v. Johnson Insulation, 425 Mass. 650, 665-667 (1997) (rejecting argument to extend Conway to asbestos removal tort case and further distinguishing, as discussed infra, appropriate prejudgment interest in personal injury context from that of G. L. c. 151B context).  See also Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 391, cert. denied sub nom. Globe Newspaper Co. v. Ayash, 546 U.S. 927 (2005) ("It cannot be said . . . that claims arising under G. L. c. 151B are causes of action in tort"); Kuppens v. Davies, 38 Mass. App. Ct. 498, 499 (1995) ("We do not concur in the defendants' view that Conway overruled Carey v. General Motors Corp.[, 377 Mass. 736 (1979), discussed infra,] sub silentio"). 

Section 60K expressly provides that "[i]n any action for malpractice, [or] negligence, . . . in which a verdict is rendered . . . for personal injuries to the plaintiff . . . there shall be added by the clerk of the court to the amount of damages interest thereon . . . from the date of the commencement of the action."  In Carey, 377 Mass. at 746, we determined that G. L. c. 231, § 6B, the corresponding prejudgment interest statute to § 60K for tort actions, "unequivocally required" that prejudgment interest be calculated on the plaintiff's entire award, which included damages for loss of future earning capacity.  See Griffin v. General Motors Corp., 380 Mass. 362, 367 (1980) (reiterating that § 6B is "unequivocal in requiring that the clerk add interest on the entire amount of the verdict").  Carey likewise required the payment of prejudgment interest on the entire judgment even where, as here, there was a bifurcation of the jury-awarded damages into past and future components.  See Carey, supra at 738-739, 746; Kuppens, 38 Mass. App. Ct. at 498, 500 (citing Carey for this proposition in medical malpractice case, where G. L. c. 231, § 60F, as in this case, required such bifurcation). 

In Johnson Insulation, 425 Mass. at 664-665, we were asked to determine whether the plaintiff was entitled under § 6B to prejudgment interest both on damages for asbestos removal costs incurred before the judgment and on damages for abatement projects not yet undertaken.  The defendant there, relying on Conway, "characterize[d] projected abatement costs as costs associated with 'future damages,' for which, it argue[d], prejudgment interest should not be assessed."  Id. at 665.  The court rejected that argument and the extension of Conway's reasoning beyond front pay damages in G. L. c. 151B cases.  Noting specifically that damages for loss of earning capacity in personal injury suits could also not be properly analogized to Conway, we held:

"The cost of asbestos abatement, whether already incurred by the Commonwealth or merely projected, is not itself the damage or injury suffered by the Commonwealth, but is rather a measurement of the appropriate compensation for that damage.  See Black's Law Dictionary 389 (6th ed. 1990) (distinguishing 'damage,' a loss or injury to person or property, from 'damages,' the money compensation for such loss).  The injury to the Commonwealth's property occurred when asbestos-containing products were installed in its buildings.  Any damages to which the Commonwealth was entitled, whatever that amount might be and whenever it might be awarded, was due from the moment of injury.  See USM Corp. v. Marson Fastener Corp., 392 Mass. 334, 348 (1984) (in the typical tort action, 'damages accrue at the time of the tortious injury').  The Commonwealth's projected abatement costs are not 'future damages,' but are rather an estimation of damage that has already occurred, for which compensation is already due. . . . Similarly, in the case of personal injury, prejudgment interest is to be awarded for the loss of earning capacity, even though it is future income that is affected by that loss."  (Footnote omitted.)

Id. at 665-667.  See Kuppens, 38 Mass. App. Ct. at 499-500. 

Hanlon makes essentially the same argument, seeking to extend the distinct holding in Conway declining to award prejudgment interest on front pay in a G. L. c. 151B case.[17]  For the same reasons we rejected this argument in Johnson Insulation, 425 Mass. at 665-667, we decline to accept it here.  In a personal injury case, the relevant statute expressly provides that prejudgment interest should be assessed on the amount of damages from the injury, and that amount of damages has been consistently interpreted to encompass the entire award, as all such damages are determined to arise from the injury itself.

4.  Conclusion.  We discern no abuse of discretion or error of law in the trial judge's decision not to allow cross-examination regarding a high-low agreement, his formulation of jury instructions regarding but-for causation, and his denial of Hanlon's postverdict motion.  We also find no error in the calculation of prejudgment interest on the damages awarded in this case.  Accordingly, the judgment is affirmed.  The order denying the motion for judgment notwithstanding the verdict, to set aside the verdict and order a new trial, or for remittitur is also affirmed.

So ordered.

footnotes

[1] Carlos Flores, Charles Loucraft, Stefanie Busa, Carla Crocker, and Merrimack Valley Emergency Associates, Inc.

[2] Hanlon, one of three defendants found liable for the plaintiff's injuries, is the only appellant in the instant case.

[3] The original complaint was filed on May 5, 2016.

[4] While technically a settlement agreement, a high-low agreement "only mitigates the risk faced by the litigants -- it saves no time or expense related to litigation and requires the full panoply of judicial process, up to and including a jury verdict."  Serico, 234 N.J. at 179.

[5] Counsel for Hanlon did cross-examine the plaintiff during trial on a change in his testimony:  at deposition the plaintiff had explained that he did not remember the details of his discharge, but he claimed at trial to have told Hanlon that his foot was still swollen and discolored.

[6] In closing, counsel for the plaintiff asked the jury to "give a lot of credit to Charles Loucraft," because, when questioned as to whether he should have read the triage nurse's note, Loucraft "told you he messed up."  Plaintiff's counsel also noted that although Loucraft "didn't throw anybody under the bus," he also testified that, had Hanlon "[told] him about a purple, cool foot," he "would have [ordered] an ultrasound."  Plaintiff's counsel also called attention to Hanlon's repeated absence from the proceedings and suggested that the jury could draw a corresponding inference:  "Maybe it's telling, kind of the way [she] acted about this case is how [she] acted about [the plaintiff] in the ED."  In response, Hanlon's counsel requested a comprehensive curative instruction that parties not present in the court room were "excused by the court" and, as such, the jury "should draw no negative inference" from their absence.  The trial judge, noting that he had never "excused" anyone, declined to so instruct, and instead gave the standard charge that "[a] party's presence in the court room or lack thereof is not evidence."

[7] Counsel for Loucraft immediately corrected Hanlon's counsel, clarifying that the insurer was in rehabilitation, not bankruptcy.

[8] In the record before us, we have only brief excerpts from Loucraft's deposition.  However, in response to Hanlon's posttrial motion, the trial judge issued a memorandum of decision that noted that "Loucraft's trial testimony was consistent with his 2019 deposition testimony."  During the hearing on Hanlon's posttrial motion, counsel for Hanlon unsuccessfully argued that after the high-low agreement was in place, Loucraft offered testimony against Hanlon, while in his deposition, Loucraft only had said "Nurse Hanlon, apparently," when asked whether anyone else knew of the plaintiff's foot complaints.  This was the first time Hanlon identified any specific purported change in Loucraft's testimony for the trial judge.

[9] Even if Hanlon had identified some changes in testimony after the parties entered into the high-low agreement, and somehow connected those changes in testimony to the existence of the high-low agreement, the trial judge would still have had to weigh the probative value of the agreement against the danger of unfair prejudice.  See, e.g., Gath v. M/A-Com, Inc., 440 Mass. 482, 490 (2003) (appropriate to exclude evidence where "its probative value is substantially outweighed by the danger of unfair prejudice"); Mass. G. Evid. § 403 (2024).

[10] The high-low agreement cases that Hanlon cites to support her right to cross-examine on such agreements are also more nuanced than she contends.  They require the trial judge to weigh the value of admitting that evidence versus the risk of prejudice their introduction may cause.  See, e.g., Hashem v. Les Stanford Oldsmobile, Inc., 266 Mich. App. 61, 86 (2005) ("in cases such as this, the interest of fairness served by disclosure of the true alignment of the parties to the jury must be weighed against the countervailing interests in encouraging settlements and avoiding prejudice to the parties"); Slusher v. Ospital, 777 P.2d 437, 444 (Utah 1989) ("the court shall . . . disclose the existence and basic content of the agreement to the jury unless the court finds that . . . such disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury").

[11] "Instructions that convey the proper legal standard, particularly when tracking model jury instructions, are deemed correct."  Commonwealth v. Doughty, 491 Mass. 788, 801 (2023), quoting Green, petitioner, 475 Mass. 624, 629 (2016).  The model jury instruction on causation was, in relevant part:

"If you find that [the defendant] was negligent, then you must decide whether [the plaintiff] proved that, more likely than not, [the defendant's] negligence caused [the plaintiff's] injuries (caused [the plaintiff's] injuries to get worse).  You must ask:  'Would the same harm have happened without [the defendant's] negligence?'  In other words, did the negligence make a difference?  If [the defendant's] negligence had an impact on [the plaintiff's] injuries, then it caused those injuries.  But if the negligence had no impact on [the plaintiff's] injuries and the same harm would have happened anyway, then [the defendant] did not cause the injuries.

"Often, an injury has more than one cause.  If [the defendant's] negligence was one of those causes, that is enough.  [The plaintiff] does not have to show that [the defendant's] negligence was the only cause of the injuries."  (Footnotes omitted.)

Superior Court Model Jury Instructions, Medical Malpractice 6-8 (May 2021).

The trial in this case took place in March 2023, when the 2021 version of the model jury instructions on medical malpractice was in effect.  A revised version of the instructions, published in December 2024, included several minor changes to the quoted language.  The relevant portion of the revised instruction states:  "You must ask:  'Would the same harm have happened without [the defendant's] negligence?'  In other words, did the negligence make a difference to the outcome?  If [the defendant's] negligence had an impact on [the plaintiff's] injuries (by causing them or worsening them), then it caused those injuries."

[12] In Doull, we approved of the trial judge's instruction on causation in fact -- that "[the] conduct was a cause of the Plaintiff's harm . . . if the harm would not have occurred absent, that is but for the Defendant's negligence.  In other words, if the harm would have happened anyway, that Defendant is not liable" -- as an appropriate expression of the "but-for" standard.  See Doull, 487 Mass. at 11 n.10, 17.  In our discussion of the approach to causation in the Restatement (Third) of Torts using traditional "but-for" causation, which we ultimately adopted in Doull, we also stated, "If a defendant's conduct was necessary to bring about a harm, and the harm would not have occurred without the defendant's conduct, that defendant should be treated as a factual cause of the harm."  Id. at 14-15.  Language aligning with the approved jury instruction in Doull and with our opinion in Doull appeared in the jury instruction in this case and is emphasized in the portion of the instructions reproduced below:    

"The defendant caused injuries if the injuries would not have occurred without, that is but for, that defendant's negligence.  To decide this, you must ask would the same harm have happened without that defendant's negligence.  In other words, did the negligence make a difference?"

[13] The drafters of the model jury instructions noted that the term "but-for" is "not in common usage among jurors and may raise questions or create confusion."  Superior Court Model Jury Instructions, Medical Malpractice 7 n.17 (Dec. 2024).   

[14] We acknowledge that, as revised in December 2024, the relevant sentence in the model instruction now states:  "If [the defendant's] negligence had an impact on [the plaintiff's] injuries (by causing them or worsening them), then it caused those injuries."  Although this is a helpful change, the parenthetical explanation, "by causing them or worsening them," or similar language is not necessary for the instruction to communicate the correct legal standard.  It also does not change our analysis of the defendant's argument here.

[15] Notably, as the discharge nurse, Hanlon was the last provider to see the plaintiff on both visits.  Hanlon assessed the plaintiff briefly before he was seen by Flores on March 13, but saw him again after Flores when she discharged the plaintiff.

[16] In the motion, Hanlon's counsel included the following footnote regarding prejudgment interest:

"Nurse Hanlon also states an order for remittitur ought to provide interest from filing of the action to the original trial date of [June] 15, 2020.  Nurse Hanlon should not be penalized for accumulation of interest due to reasons beyond her control; namely the shut down of Court proceedings and delay reaching trial due to Covid-19 orders.  As well, trial in October 2022 was derailed solely on account of Plaintiff's expert witness purported illness."

[17] We note that front pay in an employment case can be quite uncertain and therefore presents a distinct set of considerations applicable to the award of prejudgment interest.  As we stated in Conway, 402 Mass. at 388-389:   

"It is apparent that the greater the period of time upon which a front pay award is calculated in a case involving an at-will employee the less likely it is that the loss of future earnings can be demonstrated with any degree of certainty or can reasonably be attributed to the illegal conduct of the employer.  Moreover, as with claims for back pay, the employee has a duty to mitigate damages by seeking other employment."  (Footnote omitted.)

For example, an employee discriminated against may decide to leave and successfully seek more lucrative employment, thereby entitling the employee to back pay but not front pay for such discrimination.