Bronson v. Hitchcock Clinic

• Citation: 677 A.2d 665,140 N.H. 798
• Decision Date: 08 May 1996
• Docket Number: No. 92-576,92-576
• Parties: Roland BRONSON, Individually and as Administrator of the Estate of Judy Lee Bronson v. The HITCHCOCK CLINIC.
• Court: Supreme Court of New Hampshire

Page 665

677 A.2d 665

140 N.H. 798

Roland BRONSON, Individually and as Administrator of the Estate of Judy Lee Bronson v. The HITCHCOCK CLINIC.

No. 92-576.

Supreme Court of New Hampshire.

May 8, 1996.

Rehearing Denied July 9, 1996.

Abramson, Reis & Brown, Manchester (Randolph J. Reis, on the brief, and Stanley M. Brown, orally), for plaintiff.

Orr and Reno, P.A., Concord (Ronald L. Snow, on the brief, and James P. Bassett, orally), for defendant.

BRODERICK, Justice.

The plaintiff, Roland Bronson, administrator of the estate of Judy Lee Bronson, sued the defendant, Hitchcock Clinic (the Clinic), alleging medical negligence resulting in the wrongful death of his wife. The jury returned a verdict for the plaintiff. On appeal, the defendant argues that the Superior Court (Perkins, J.) erred in denying its motions for directed verdict and for judgment notwithstanding the verdict on several grounds. We affirm.

In November 1985, Mrs. Bronson visited her local physician complaining of shortness of breath and an irregular heartbeat. After ordering an X ray, the physician discovered a "large, poorly defined, anterior mediastinal mass about seven centimeters in diameter" in Mrs. Bronson's chest. She was referred for diagnosis and treatment to the Hitchcock Clinic, where a biopsy was performed on the mass on December 3, 1985. While performing the biopsy, the thoracic surgeon accidentally lacerated Mrs. Bronson's pulmonary artery. Emergency surgery was required to prevent her from bleeding to death.

On February 11, 1986, a team of cancer specialists at the Clinic reviewed Mrs. Bronson's case and collectively concluded that a form of lymphoma was in her "differential diagnosis." They hoped to obtain another tissue sample, however, because they were unable to make a firm diagnosis. The thoracic surgeon who had performed the chest surgery recommended waiting to perform another biopsy on Mrs. Bronson, and the remaining conferees agreed to postpone the biopsy and monitor her condition. During the following three months, Mrs. Bronson's local physician monitored her status. In May she returned to the Clinic because her condition had worsened. On May 14, 1986, the Clinic performed a second biopsy and immediately began treating Mrs. Bronson for Hodgkin's disease. She died of the disease in January 1988.

Roland Bronson, individually, and on behalf of Mrs. Bronson's estate, brought a medical negligence action against the Clinic for failure promptly to diagnose and treat his wife for Hodgkin's disease, claiming that the defendant's negligence caused her death. The defendant moved for a directed verdict at the close of the plaintiff's case on the ground that the plaintiff had not established a prima facie case of medical negligence, arguing that the plaintiff failed to introduce sufficient expert testimony from which the jury could conclude that the defendant's negligence caused Mrs. Bronson's death. The trial court denied this motion. After the jury returned a verdict in favor of the plaintiff, the defendant moved for judgment notwithstanding the verdict and to set aside the verdict. The trial court denied these motions as well.

On appeal, the defendant argues that: (1) the plaintiff introduced insufficient medical expert testimony on the issue of causation to survive a motion for directed verdict or for judgment notwithstanding the verdict; (2) the trial court erred in denying the defendant's motion for partial directed verdict on the plaintiff's "failure to rebiopsy" theory of recovery; (3) the trial court erred in allowing a medical witness to testify about the defendant's failure to treat Mrs. Bronson; (4) the trial court abused its discretion in allowing the plaintiff to compel the videotaped deposition of a medical witness; and (5) the trial court erred in instructing the jury on causation. The plaintiff filed a cross-appeal but declined to brief the issues raised therein. We therefore consider them to be waived. See Sutliffe v. Sutliffe, 138 N.H. 404, 406, 640 A.2d 284, 286 (1994).

In an opinion dated September 21, 1994, we reversed. The plaintiff moved for rehearing. See Sup.Ct.R. 22. We granted the plaintiff's motion, withdrew our opinion, and ordered rebriefing and reargument. We now affirm.

I. Causation

The primary issue on appeal is whether the plaintiff introduced sufficient medical expert testimony about causation to survive a motion for directed verdict or a motion for judgment notwithstanding the verdict. For purposes of resolving the causation issue, the defendant concedes that the plaintiff established a duty, breach of that duty, and injury.

Though they are made at different points in a trial, "[m]otions for directed verdict and judgment notwithstanding the verdict are essentially the same, ... and they are governed by identical standards." Thompson v. The H.W.G. Group, 139 N.H. 698, 699, 664 A.2d 489, 490 (1995) (quotation omitted). "Such motions should be granted only when the sole reasonable inference that may be drawn from the evidence, which must be viewed in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving party that no contrary verdict could stand." Id. (quotation omitted).

In a medical negligence action, the plaintiff's burden of proof is defined by statute. See RSA 507-E:2, I (Supp.1995). The plaintiff must prove "by affirmative evidence which must include expert testimony ... [t]hat as a proximate result [of the defendant's negligence], the injured person suffered injuries which would not otherwise have occurred." RSA 507-E:2, I(c). This statutory standard reflects the plaintiff's burden at common law to produce sufficient evidence that the defendant's negligence proximately caused the patient's injury. See Pillsbury-Flood v. Portsmouth Hosp., 128 N.H. 299, 304, 512 A.2d 1126, 1129 (1986).

The concept of proximate cause includes both the cause-in-fact and the legal cause of injury. The parties in this case dispute only whether the plaintiff established that the defendant's negligence was the cause-in-fact of Mrs. Bronson's death. Conduct is the cause-in-fact of an injury if the injury would not have occurred without that conduct. See North Bay Council, Inc. v. Bruckner, 131 N.H. 538, 548, 563 A.2d 428, 434 (1989); W. Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 266 (5th ed. 1984). The plaintiff must produce evidence sufficient to warrant a reasonable juror's conclusion that the causal link between the negligence and the injury probably existed. See Martin v. Wentworth-Douglass Hosp., 130 N.H. 134, 136, 536 A.2d 174, 176 (1987).

The actionable injury here is the death of Mrs. Bronson. Accordingly, we must determine whether--viewing all of the evidence in the light must favorable to the plaintiff--the plaintiff met his burden of producing expert medical testimony that could lead a rational juror to conclude that the defendant's negligent six-month delay in diagnosing and treating Mrs. Bronson for Hodgkin's disease caused or probably caused her death. See id.

A review of the expert testimony reflects that the plaintiff asked his medical oncology expert, Dr. Sandra Horning, an associate professor in the department of medicine at Stanford University, what the delay in diagnosis meant to Mrs. Bronson's outlook or outcome. Dr. Horning testified:

I think in the interval that you described that her stage, if you will, progressed. As I have indicated, I think the more important features are the objective data which show[ ] that the tumor clearly grew. And I think the records indicate that the patient was in less good shape, if you will, at the time that the chemotherapy and radiotherapy were initiated, by virtue of persistence and increase in her symptoms.

Dr. Horning also testified that the defendant's delay in diagnosis lessened Mrs. Bronson's chances for a curative outcome. Specifically, she stated that in November 1985, Mrs. Bronson's probability of survival "with a combination of chemotherapy and radiation" was "approximately 75 percent," and that it had decreased to "somewhere in the neighborhood of 50 percent" by May 1986. On cross-examination, the defendant asked Dr. Horning: "[A]ll anybody could say in this case is that you believe an earlier diagnosis would have given the patient a better chance of survival statistically, isn't that right?" She answered, "Yes." She was never asked directly whether the defendant's negligence "caused" or "probably caused" Mrs. Bronson's death.

The defendant argues that the plaintiff failed to meet the burden of production on causation because at most his statistical evidence supports the conclusion that Mrs. Bronson is equally likely to have died from pre-existing cancer as from the defendant's negligent delay in diagnosis. The defendant points to the twenty-five percent decrease in Mrs. Bronson's chance of survival and compares it to the twenty-five percent chance she had of not surviving before the failure to diagnose. From this, the defendant concludes that Hodgkin's disease was as equally likely the cause of Mrs. Bronson's death as was the defendant's failure to diagnose and, therefore, that the plaintiff failed to establish that the defendant's negligent delay in diagnosis caused Mrs. Bronson's death. The plaintiff contends that he produced sufficient evidence of cause-in-fact merely by establishing that Mrs. Bronson's statistical probability of survival was seventy-five percent before the negligence occurred.

We are not persuaded by either interpretation of the evidence. Each argument incorrectly relies exclusively upon the statistical evidence; though such evidence may form the basis for an opinion on causation, bare percentages alone are insufficient to establish causation. See Battenfeld v. Gregory, 247 N.J.Super. 538, 589 A.2d 1059, 1064 (1991); Herskovits v. Group Health Co-op., 99 Wash.2d 609, 664 P.2d 474, 488-91 (1983) (Brachtenbach, J., dissenting). Simply put, the...