350 Mass. 450 (1966), Pasquale v. Chandler

Citation350 Mass. 450, 215 N.E.2d 319
Party NameDavid B. PASQUALE, Administrator, v. Charles F. CHANDLER et al.
Case DateMarch 24, 1966
CourtUnited States State Supreme Judicial Court of Massachusetts

Page 450

350 Mass. 450 (1966)

215 N.E.2d 319

David B. PASQUALE, Administrator,

v.

Charles F. CHANDLER et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 24, 1966

Argued Oct. 8, 1965.

Morris N. Gould, Clinton, for plaintiff.

Stanley B. Milton, Worcester (Robert C. Milton, Worcester, with him), for defendant Chandler.

James C. Donnelly, Jr., Worcester, for defendant Lentino.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

Page 451

REARDON, Justice.

In this action of tort involving alleged medical malpractice, the defendants presented motions for directed verdicts at the close of the evidence and the judge directed verdicts for the defendants on every count of the plaintiff's declaration. The case comes to us on the plaintiff's exceptions to the action of the judge.

Page 452

By writ dated February 21, 1962, the defendants, Dr. Charles F. Chandler and Dr. Joseph W. Lentino, both of Clinton, were sued by David B. Pasquale as administrator of the estate of his father, Nunzio Pasquale. The action was for damages both for pain and suffering and for wrongful death. Alleged in the declaration, in a number of counts, were: (1) negligence in the performance of an operation on the decedent; (2) failure to diagnose and treat his condition properly; (3) negligence in [215 N.E.2d 320] the care and treatment of the decedent in the years following the operation; (4) fraudulent concealment of a cause of action; and (5) assault and battery upon the decedent by means of a surgical instrument.

We briefly summarize the evidence most favorable to the plaintiff. On October 10, 1955, Nunzio Pasquale, seventy-three years of age, visited Dr. Lentino. He had been feeling ill for some time, was pale and emaciated, had lost weight, had 'tarry stools,' and had been subject to digestive disturbances. On October 13, 1955, Dr. Lentino had X-rays taken of Pasquale at the Clinton Hospital which indicated a bleeding gastric ulcer. Following hospitalization of Pasquale and a conference with Dr. Chandler, it was decided to perform surgery. A subtotal gastrectomy, removal of most of the stomach, including the ulcer, was performed on October 22, 1955, by Dr. Chandler with the assistance of Dr. Lentino. The operation required approximately three and one-half hours. Dr. Chandler did not make a count of the surgical instruments employed but did cause a count to be made of sponges and needles utilized in the operation. Some fifty to seventy-five clamps were used, including approximately twenty-five so called Kelly clamps. A Kelly clamp is similar in appearance to a pair of scissors, is approximately eight inches in length, with curved serrated jaws and a ratchet type lock. It is employed to control bleeding during the progress of an operation. One such clamp was left in the abdominal cavity of the patient when the incision was closed.

After several weeks of convalescence in the hospital, and more particularly after October 29, 1955, Pasquale was in

Page 453

the exclusive care of Dr. Lentino who saw his patient on at least seventeen occasions, the last being April 7, 1961, less than one year before the commencement of this action. In 1955, when Pasquale went originally to Dr. Lentino, he provided for the taking of X-rays. In a visit on September 6, 1956, Dr. Lentino discussed the decedent's postoperative condition with him and cautioned him about his diet, stating that if gastric symptoms of which he was then complaining 'did not clear up' Pasquale should 'let him know and they would take an x-ray.' There is a notation on a card in the doctor's files dated September 6, 1956, that Pasquale 'was to have an x-ray of the stomach if heartburn continued.' Dr. Lentino himself testified that on September 6, 1956, 'he felt that if Mr. Pasquale's heartburn continued, after he went back on his diet and continued to take gelusil, that good sound medical practice would be to have an x-ray taken of this man's stomach * * *.' Following a fall by Pasquale in 1957 and a skull X-ray, the doctor 'did nothing concerning * * * (Pasquale's) stomach condition because after having a blow on the head and possible concussion, it would have been poor judgment to subject him to any elaborate physical procedure * * *.' While Pasquale was in the hospital after his fall, the doctor determined that there was no serious complaint at that time about his stomach and did not order X-rays on the ground 'that an x-ray at this time could not have ascertained the cause of his stomach complaint in his opinion.' Pasquale again visited the doctor on April 5, 1957, complaining of heartburn and the doctor 'ordered him to continue on his medication and go back on his diet and at this time, he told him that after he had been on his diet for a period of time, if he did not receive relief from his antacids, he was to let him know and he would take some x-rays.' The doctor stated that on May 24, 1957, he was not of the opinion that an X-ray was 'sound medical practice for this patient.' Almost a year elapsed before he saw Pasquale again in April of 1958, at which time 'he...

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27 practice notes
  • 293 F.Supp. 1328 (D.D.C. 1968), Civ. A. 2975-67, Burke v. Washington Hospital Center
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • 6 décembre 1968
    ...which was two years. Only recently, as late as 1966, the highest court of Massachusetts reasserted this doctrine in Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319, on the authority of the Cappuci case. The Court, however, expressed some misgivings concerning the validity of this rule e......
  • 267 N.E.2d 419 (Ohio 1971), 69-611, Wyler v. Tripi
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 24 février 1971
    ...only legislated, but of having done so directly in the face of a clear and opposite legislative intent. Cf. Pasquale v. Chandler (1966), 350 Mass. 450, 215 N.E.2d 319. Statutes of limitation are designed to assure an end to litigation and to establish a state of stability and repose. It mus......
  • 381 Mass. 611 (1980), Franklin v. Albert
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 9 octobre 1980
    ...Chief Justice. This is one of two similar cases decided today seeking reconsideration of the holding in Pasquale v. Page 612 Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966), that under the Massachusetts statute of limitations for medical malpractice 3 a cause of action "accrues" at......
  • 365 Mass. 83 (1974), Hendrickson v. Sears
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 8 avril 1974
    ...on the ground that the limitation period had run. Hendrickson v. Sears, 359 F.Supp. 1031 (D.Mass.1973), citing Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966). A judgment of dismissal was entered, the plaintiffs appealed to the Court of Appeals, and that court on its own motion c......
  • Request a trial to view additional results
27 cases
  • 293 F.Supp. 1328 (D.D.C. 1968), Civ. A. 2975-67, Burke v. Washington Hospital Center
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • 6 décembre 1968
    ...which was two years. Only recently, as late as 1966, the highest court of Massachusetts reasserted this doctrine in Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319, on the authority of the Cappuci case. The Court, however, expressed some misgivings concerning the validity of this rule e......
  • 267 N.E.2d 419 (Ohio 1971), 69-611, Wyler v. Tripi
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 24 février 1971
    ...only legislated, but of having done so directly in the face of a clear and opposite legislative intent. Cf. Pasquale v. Chandler (1966), 350 Mass. 450, 215 N.E.2d 319. Statutes of limitation are designed to assure an end to litigation and to establish a state of stability and repose. It mus......
  • 381 Mass. 611 (1980), Franklin v. Albert
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 9 octobre 1980
    ...Chief Justice. This is one of two similar cases decided today seeking reconsideration of the holding in Pasquale v. Page 612 Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966), that under the Massachusetts statute of limitations for medical malpractice 3 a cause of action "accrues" at......
  • 365 Mass. 83 (1974), Hendrickson v. Sears
    • United States
    • Massachusetts United States State Supreme Judicial Court of Massachusetts
    • 8 avril 1974
    ...on the ground that the limitation period had run. Hendrickson v. Sears, 359 F.Supp. 1031 (D.Mass.1973), citing Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966). A judgment of dismissal was entered, the plaintiffs appealed to the Court of Appeals, and that court on its own motion c......
  • Request a trial to view additional results