Civitarese v. Gorney

Citation358 Mass. 652,266 N.E.2d 668
PartiesMary CIVITARESE v. Arthur GORNEY.
Decision Date05 February 1971
CourtUnited States State Supreme Judicial Court of Massachusetts

Francis X. Goode, Boston (Lovell S. Spaulding, Boston, with him) for plaintiff.

John F. Finnerty, Boston, for defendant.


SPALDING, Justice.

In this action the plaintiff seeks to recover for the alleged malpractice of the defendant in performing a tonsillectomy. The declaration contains three counts, two in tort and one in contract. The judge directed verdicts for the defendant on all counts at the conclusion of the plaintiff's evidence. The plaintiff's bill of exceptions brings here the propriety of the directed verdicts and of rulings excluding certain evidence, to all of which the plaintiff duly excepted.

The declaration, as amplified by specifications, alleges that the defendant negligently prepared for a tonsillectomy upon the plaintiff by failing to make the usual and routine preoperative examinations and by failing to ascertain the results thereof, and that he negligently elected to use local rather than general anesthesia (count 1); that he broke his contract with the plaintiff by not properly analyzing and weighing information given to him and by his choice of surgical technique (count 2); and that he negligently performed a second operation by not placing the plaintiff under anesthesia at a reasonable time (count 3).

We summarize the evidence in the light most favorable to the plaintiff.

The defendant was a surgeon in charge of the ear, nose and throat service at the Boston City Hospital. He saw the plaintiff for the first time on December 6, 1960, and 'took a history from her in regard to her complaint of sore throats.' He examined only 'her ears, nose, throat and neck.' The defendant 'had not at this time, from either the plaintiff or any other physician attending her, been made aware of her condition prior to this occasion.' He arranged for the plaintiff to undergo a tonsillectomy on January 10, 1961; she was admitted to the hospital on January 9.

A summary of the defendant's testimony includes the following: Prior to the operation he arranged for a urinalysis of the plaintiff and checked the results. When asked if he had a record of such a test, he replied that it would be in the hospital record but that the sheet containing that record was missing. He conceded that there was no entry in the hospital record relative to a blood test or urinalysis. He stated that such tests were 'routine,' and that although he had no specific recollection of them, he 'wouldn't have operated on the patient if the records weren't there.' Knowledge of the results of these tests was a preoperative requirement at the Boston City Hospital and at other hospitals in the area.

The defendant removed the plaintiff's tonsils by 'dissection and snare,' controlled the resultant bleeding by pressure of a 'Kelly' instrument, and returned the patient to her room. Late that afternoon he received word that the plaintiff was bleeding from her right tonsil area. The next day, according to the hospital record, the patient was bleeding from both tonsil areas. The resident sutured the left tonsil area, applied silver nitrate to both areas and administered a two unit blood transfusion. The bleeding was stopped, but on the afternoon of January 12, it began again. The defendant put in several sutures and gave more blood transfusions. Later in the day he performed a second operation to stop the bleeding. The next day he observed that the plaintiff had jaundice. He continued to see the plaintiff until January 17, when she refused to be seen by him. The defendant stated that bleeding was 'very common,' but agreed that 'in the normal tonsillectomy' blood transfusions are not required.

An entry from the patient's hospital record was introduced to the effect that after a blood test was administered on January 11, it was concluded that '(t) here is nothing to suggest bleeding is due to defect in blood coagulation.' Also introduced was the portion of the hospital record containing the diagnosis of the plaintiff following the second operation which read: '(i)nfectious hepatitis, acute pyelonephritis, status post-tonsillectomy and post-tonsillectomy bleed--probably means bleeding, bleeding, question of superimposed hemolytic episode, and secondary to transfusion reaction.'

The plaintiff testified to the following: She had been a nurse at Boston City Hospital since 1957. Part of her preoperative care of patients included having a 'routine urinalysis done.' When she was admitted to the hospital January 9, 1961, no samples of her blood or urine were taken. She was conscious during the operation, and described it to the jury. After the defendant removed her tonsils, he commented that there was a lot of bleeding. It was not until after the second operation that a urinalysis was made for the first time.

Dr. James Sacchetti, assistant superintendent of the Boston City Hospital, stated that the usual minimal standard preoperative tests for a tonsillectomy would include a urinalysis and a blood examination. The latter is primarily for blood typing and to determine if there is anemia. The urinalysis is to determine the possibility of kidney infection or kidney disease. The results of these tests are incorporated in the hospital record and made available to the operating surgeon. No such test results appear in the hospital records for either January 9 or 10.

1. The plaintiff urges first that directing verdicts for the defendant on all counts was error because the evidence presented was sufficient to present a question for the jury. To entitle the plaintiff to go to the jury there must be sufficient evidence to warrant a finding (1) of negligence on the defendant's part, and (2) of a causal relationship between the negligence and the plaintiff's injuries. Semerjian v. Stetson, 284 Mass. 510, 512, 187 N.E. 829. Berardi v. Menicks, 340 Mass. 396, 399, 164 N.E.2d 544.

The standard the defendant was obliged to meet as a specialist was 'the standard of care and skill of the average member of the profession practising the specialty, taking into account the advances in the profession.' Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793, 798. As the defendant himself testified that the taking of preoperative tests of blood and urine was a requirement both at his hospital and at hospitals...

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16 cases
  • Rosario v. US, Civ. A. No. 86-2017-N.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 10 mai 1993
    ...on other grounds, 634 F.2d 650 (1st Cir.1980); see also Harlow v. Chin, 405 Mass. 697, 701, 545 N.E.2d 602 (1989); Civitarese v. Gorney, 358 Mass. 652, 655, 266 N.E.2d 668 (1971); Berardi v. Menicks, 340 Mass. 396, 399, 164 N.E.2d 544 1. Duty of Care The proper measure of a physician's cond......
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    • Appeals Court of Massachusetts
    • 2 décembre 1982
    ...such a conclusion would be, in my opinion, beyond the scope of the ordinary experience of the fact finder. See Civitarese v. Gorney, 358 Mass. 652, 656, 266 N.E.2d 668 (1971); Commonwealth v. Harris, 1 Mass.App. 265, 268, 295 N.E.2d 687 (1973), S.C., 364 Mass. 236, 303 N.E.2d 115 Proceeding......
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    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 19 octobre 1989
    ...defendant's part, and (2) of a causal relationship between the negligence and the plaintiff's injuries." Page 605 Civitarese v. Gorney, 358 Mass. 652, 655, 266 N.E.2d 668 (1971). The defendants claim that the evidence presented at trial was insufficient to support a verdict either that the ......
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    • United States State Supreme Judicial Court of Massachusetts
    • 15 septembre 1976 make an offer of proof in order to preserve for appeal a ruling excluding a question on cross-examination (see Civitarese v. Gorney, 358 Mass. 652, 658, 266 N.E.2d 668 (1971); Stevens v. William S. Howe Co., 275 Mass. 398, 402, 176 N.E. 208 (1931)); this is because an offer must point to......
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