Collins v. Baron
| Decision Date | 10 June 1983 |
| Citation | 16 Mass.App.Ct. 926,450 N.E.2d 626 |
| Parties | Kathleen COLLINS et al. v. Joel J. BARON. |
| Court | Appeals Court of Massachusetts |
Daniel H. Kelleher, Boston (John J. Mackin, Boston, with him), for Kathleen Collins.
Edward J. Krug, West Newton (David M. Gould, Boston, with him), for defendant.
Before PERRETTA, CUTTER and SMITH, JJ.
RESCRIPT.
The plaintiff brought an action against the defendant doctor, alleging that he negligently injured her during surgery. Her husband also sought damages for loss of consortium. The jury found for the defendant, and the plaintiffs appeal, claiming error in the trial judge's instructions to the jury. We affirm.
The following facts were put to the jury. During a medical examination of the plaintiff, the defendant discovered that she had a condition which could lead to cancer, and he recommended that she undergo a vaginal hysterectomy. He discussed the medical procedure with her and advised her that over the weekend immediately following her operation she would be attended to by his medical associate.
In the course of the operation, the plaintiff's ureter was damaged, and over the weekend, while being tended to by the defendant's associate, her abdomen became distended, and she experienced lower back and rectal pain. The defendant saw the plaintiff on the third day after the operation, and he soon thereafter transferred her to the New England Medical Center Hospital for treatment of her injury.
The plaintiff testified that in explaining her post-surgical condition to her, the defendant said: " " The plaintiff's husband testified that he was present during this conversation, and he supported the plaintiff's testimony.
The plaintiff's medical expert testified that, in his opinion, the plaintiff's ureter was cut during the operation, that the defendant's use of a clamp was not good medical practice, and that had the defendant rendered proper post-operative care and had an intravenous pyelogram been done sooner than it was, the defendant would have known that something was wrong.
The defendant related that the plaintiff's ureter He denied the plaintiff's version of his post-surgical conversation with her and testified that he advised her that her ureter had been injured, that the injury had occurred during the hysterectomy, that he "regretted that she sustained this complication of surgery," and that she was to be transferred to another hospital for "definitive treatment of this injury."
The defendant's medical expert, who had been performing hysterectomies for over twenty-five years and who had examined the plaintiff at the New England Medical Center Hospital, testified that it is routine for physicians who practice in conjunction with each other to make "rounds" on one another's patients. He further stated that there is a certain incidence of this type of injury with hysterectomies even when done by "the most skillful hands and in the most careful way." The defendant's expert also testified that he knew that the defendant had used a clamp during the surgery but that it was his opinion that although the injury occurred during the surgery, the plaintiff's ureter had not been cut; rather, the damage was the result of an obstruction which he detected when he examined the plaintiff. He stated that the plaintiff's condition could not have been discovered by an earlier intravenous pyelogram because it takes three or four days for an injury such as the plaintiff's to develop to the point that it can be detected by such a procedure. In the opinion of the defendant's medical expert, the surgery performed on and the post-operative care of the plaintiff by the defendant was in accordance with accepted standards of care for an obstetrician gynecologist in 1976, the time of the surgery.
1. The plaintiffs argue that the trial judge erred in refusing to instruct the jury that "[a] statement by the defendant to the plaintiff and her husband that he had cut her ureter, that it was his fault, that he had made a mistake, and that he was sending her to a fine hospital in order that the damage be remedied, if believed by the jury ... is an admission, which is to be considered by the jury in arriving at its verdict." See Woronka v. Sewall, 320 Mass. 362, 366, 69 N.E.2d 581 (1946). The trial judge stated that he would not...
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Collins v. Baron
...The plaintiff appealed, claiming error in the instructions to the jury. The Appeals Court affirmed the judgment, Collins v. Baron, 16 Mass.App. 926, 450 N.E.2d 626 (1983), and we granted further appellate review. We reverse and remand for a new In addition to the conflicting expert testimon......
- Carlson v. Withers