Barrette v. Hight

Decision Date08 November 1967
Citation230 N.E.2d 808,353 Mass. 268
PartiesBarbara A. BARRETTE v. Donald M. HIGHT.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Meyer H. Goldman, Boston, for plaintiff.

John F. Dunn, Boston, for defendant.


CUTTER, Judge.

In this action of tort Mrs. Barrette alleges that Dr. Hight gave her negligent medical treatment. 1 The jury found for Dr Hight. The case is before us on Mrs. Barrette's bill of exceptions.

Mrs. Barrette was admitted on June 30, 1963, to the Memorial Hospital in Worcester for an ulcer operation to be performed by Dr. Hight, chief of surgery at the hospital. Dr. Delbeau, a resident in surgery, examined her. On July 1, she was seen by Dr. Sahni, and on July 2 Dr. Hight and Dr. Beals saw her. Dr. Hight instructed Dr. Delbeau to do a 'cutdown' on Mrs. Barrette, that is, a cut in her arm on July 3 prior to the operation so that a needle could be inserted in a vein for intravenous feeding, blood transfusion, or anesthesia.

There was conflicting evidence concerning whether Dr. Hight was in the operating room at the commencement of the cutdown and to what extent he participated in it. It was started in the outside left upper arm and, when that proved not to be satisfactory, a cut was made in the inner part of the upper left arm. In the course of the cutdown the lateral nerve of the arm was severed and the median nerve was damaged. Eventually a cutdown was made in the ankle. Mrs. Barrette, as a consequence, suffered pain, incurred hospital and medical expense, and was incapacitated for work as a typist. Other relevant evidence is discussed in connection with particular exceptions.

1. Mrs. Barrette testified (a) that, in late August, 1963, after the operation, she spoke to a doctor in the hospital's outpatient department about her condition; (b) that after this talk she called Dr. Hight; and (c) that 'Dr. Hight said * * * he would take the responsibility for what happened and pay the bills.' Dr. Hight, on the other hand, testified that he 'did not assume responsibility for Dr. Delbeau's conduct in the cut-downs,' and that '(h)e received no call from Mrs. Barrette, and * * * did not tell her * * * he was responsible and * * * (would) take care of all the bills.'

The judge, after referring to this conflict of testimony, charged, 'Now, here is a flat conflict in the testimony * * * on a material aspect of the case, because if the plaintiff was telling the truth here, if in fact the doctor made an admission of responsibility or a promise to pay bills, it would be evidence of an admission of liability on his part, evidence that he had been negligent. On the other hand, if you think that the plaintiff made up this story, that is, if you believe the doctor's testimony that no such conversation occurred, then you can * * * (weigh) all of the plaintiff's testimony in the light of that conduct. You can consider the probability of whether such a conversation ever took place.' Mrs. Barrette's counsel claimed an exception 'to the general comment * * * and especially the words 'if the plaintiff made up this story. '' 2

A trial judge may properly bring to the jury's attention issues of fact and conflicts of testimony. He may point out factors to be considered in weighing particular testimony. Nothing in G.L. c. 231, § 81, precludes, or could properly preclude, such guidance where the judge clearly places the function of ultimate appraisal of the testimony upon the jury. See Beers v. O'Brien, 316 Mass. 532, 536--537, 55 N.E.2d 931; Hathaway v. Checker Taxi Co., 321 Mass. 406, 410, 73 N.E.2d 603. See also Cahalane v. Poust, 333 Mass. 689, 691--695, 132 N.E.2d 660. This charge shows no improper expression of the judge's own evaluation of the testimony. Commonwealth v. McDonald, 264 Mass. 324, 335--336, 162 N.E 401. Cf. Federal Natl. Bank v. O'Keefe, 267 Mass. 75, 82--83, 165 N.E. 897; Cahalane v. Poust, 333 Mass. 689, 692--695, 132 N.E.2d 660; Baglio v. New York Cent. R.R., 344 Mass. 14, 20, 180 N.E.2d 798. As the judge pointed out, if the jury did not believe the witness or regarded her testimony as either fabricated or distorted, their opinion to that effect might properly influence their appraisal of her other testimony. 3

There was also a conflict in testimony between Mrs. Barrette and Dr. Hight concerning whether Dr. Hight 'participated in * * * the actual cutting of * * * (Mrs. Barrette's) arm.' The judge, in his charge, correctly summarized Dr. Delbeau's testimony on the subject. His charge that this testimony 'also should help * * * in your consideration of whether the plaintiff * * * or the defendant was telling the truth' concerning Dr. Hight's participation properly left any finding on the issue to the jury. Cf. Liakos v. Moreno, 351 Mass. 90, 94, 217 N.E.2d 764. The exception to this portion of the charge, in any event, was far too general. Mansell v. Larsen, 311 Mass. 607, 613--614, 42 N.E.2d 520.

3. The judge expressly gave, as a supplementary charge, instructions requested in behalf of Mrs. Barrette that 'as a specialist' Dr. Hight owed Mrs. Barrette 'the duty to * * * use the care and skill commonly possessed and used by similar specialists in like circumstances,' that the jury might infer that, among Dr. Delbeau's duties, 'was the administering by him * * * of such treatment as' Dr. Hight might direct, and that 'the extent' of Dr. Hight's 'possible liability' would be for negligence in examining Mrs. Barrette, in his diagnosis, and 'in the direction for treatment given to the house officer.' He was not obliged to specify, as requested, with more particularity phases of Dr. Hight's activities which might have been negligently performed. Commonwealth v. Polian, 288 Mass. 494, 499, 193 N.E. 68, 96 A.L.R. 615. Commonwealth v. Vanetzian, 350 Mass. 491, 496, 215 N.E.2d 658.

4. The trial judge charged that 'Dr. Hight cannot be held responsible for the negligence or lack of skill of other doctors in this case, if there was negligence of such others, even though you find that they were somewhat under his direction or control. For example, if you find that the actual scalpel work on * * * (Mrs. Barrette's) arm was done by Dr. Delbeau, and that he cut one nerve and injured another because of any lack of skill or negligence on his part, those facts alone would not make Dr. Hight liable, if you find it was good practice in Worcester in July, 1963, to permit house doctors to do cutdowns, and if Dr. Hight honestly believed that Dr. Delbeau had the skill to do the work.' This charge is consistent with our decisions. See Withington v. Jennings, 253 Mass. 484, 486, 149 N.E. 201; Klucken v. Levi, 293 Mass. 545, 550--551, 200 N.E. 566; Ramsland v. Shaw, 341 Mass. 56, 63, 166 N.E.2d 894.

There was no evidence that it was contrary to good medical practice in Worcester to permit hospital 'resident' physicians (such as Dr. Delbeau) to do cutdowns, whatever may be the practice with respect to internes. The judge's supplemental instructions adequately reflected anything here applicable said in Tallon v. Spellman, 302 Mass. 179, 182, 19 N.E.2d 33.

5. Dr. Delbeau was a resident in surgery at the Memorial Hospital. He practiced medicine there in 1963 under a certificate of limited registration issued to him under G.L. c. 112, § 9 (as amended through St.1962, c. 578). 4 The judge correctly ruled that this certificate permitted Dr. Delbeau to practice within the Memorial Hospital without being 'under supervision of one of its medical officers.' These words of the statute, the judge held to apply only to Dr. Delbeau's practice of medicine outside the hospital. The judge adopted what seems to us the natural interpretation of the words used. That interpretation is supported by the statutory history of § 9. The section had its origin in St.1920, c. 244, when the scope of permissible practice of the registrant was described by the words, 'but such limited registration shall entitle the * * * applicant to practice medicine only in the hospital * * * designated on his certificate of limited registration, and under the regulations established by such hospital * * *.' By St.1933, c. 152, the limitation was changed by adding new language permitting supervised practice of hospital patients outside the hospital. We perceive in the new language no indication that the registrant's right to practice within the hospital was to be changed by the amendment. Exceptions based, in whole or in part, upon the judge's interpretation of the statute are without merit.

6. We do not reach a question argued by Mrs. Barrette, viz. that the trial judge (see for our decisions, e.g. Riggs v. Christie, 342 Mass. 402, 405--406, 173 N.E.2d 610) unduly restricted the standard of Dr. Hight's conduct to the community of Worcester. The testimony about standards for making or directing cutdowns did not differentiate significantly between practices in Worcester and practices elsewhere. 5

7. Mrs. Barrette claimed an exception to the italicized sentence of the portion of the charge set out in the margin. 6 This language was used in Morris v. Weene, 258 Mass. 178, 180, 154 N.E. 860. The trial judge treated the italicized language as essentially the same as, or equivalent to, that used in the last sentence of the quoted portion of the charge (fn. 6), usually now employed to describe a plaintiff's burden of proof where an injury may have been caused by one or more of several alleged causes, including an act or omission of a defendant said to be negligent. See e.g. Woronka v. Sewall, 320 Mass. 362, 365, 69 N.E.2d 581; Howard v. Lowell Coca-Cola Bottling Co., 322 Mass. 456, 458, 78 N.E.2d 7; DiRoberto v. Lagasse, 336 Mass. 309, 311--312, 145 N.E.2d 834.

If there was inaccuracy in the italicized language, that seems immaterial in the present case. None of the defendant doctors (fn. 1) could have been liable unless the cutdown caused Mrs....

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