Doull v. Foster

Decision Date26 February 2021
Docket NumberSJC-12921
Citation163 N.E.3d 976,487 Mass. 1
Parties Seth DOULL & another v. Anna C. FOSTER & another.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Krzysztof G. Sobczak, Boston, for the plaintiffs.

Tory A. Weigand, Boston, for the defendants.

Jennifer A. Creedon & Stephanie M. Gazda, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.

Brendan G. Carney, Thomas R. Murphy, Salem, Kevin J. Powers, Boston, & Elizabeth N. Mulvey, Boston, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Geroges, JJ.4


Causation has been a continually contested concept in tort law, confounding courts, commentators, and practitioners. In this medical malpractice case, we are asked once again to clarify our case law on causation, along with a series of other issues that are more readily decided. Specifically, we examine the use of two competing causation standards: the traditional but-for causation standard and the alternative substantial contributing factor standard. After careful review, we conclude that the traditional but-for factual causation standard is the appropriate standard to be employed in most cases, including those involving multiple alleged causes. This is the approach recommended by the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) (Restatement [Third]). In doing so, we conclude that the substantial factor test is unnecessarily confusing and discontinue its use, even in multiple sufficient cause cases. Because the jury in this case were instructed using traditional but-for causation principles, the instructions were proper. We also reject all of the plaintiffs’ other claims on appeal and affirm the order denying a new trial.5

1. Background. We summarize the facts that could have been found by the jury, reserving certain facts for later discussion.

a. Facts. Between 2008 and 2011, Laura Doull was a patient of Anna C. Foster, a nurse practitioner, and her supervisor, Dr. Richard J. Miller (collectively, the defendants). Miller, an internist, owned the medical practice where Doull was a patient.

In August 2008, Doull had an appointment with Foster to seek advice regarding perimenopause-related symptoms. Foster prescribed Doull a topically applied, naturally derived progesterone cream to treat the symptoms.6 Foster admitted that she did not document any conversation that she had with Doull about the risks and benefits of, or the alternatives to, the progesterone cream, but she did testify that they discussed alternatives to it. However, Foster stated that she did not discuss the possibility with Doull that the progesterone cream could cause blood clots because she did not consider this to be a risk. Doull continued to use the progesterone cream through the spring of 2011.

Earlier that spring, Doull had visited Miller's practice on three separate occasions to complain about shortness of breath. Doull met with Foster on each visit, and Foster performed a physical examination of Doull each time. Doull had a history of asthma and allergies. At the spring 2011 visits, Foster diagnosed Doull's shortness of breath as a symptom of some combination of these long-standing conditions. Miller did not examine Doull during any of these visits.

In May 2011, Doull had a "seizure-like event" and was transported to the hospital. At the hospital, she was diagnosed with a pulmonary embolism, a condition where blood clots or other substances block portions of the pulmonary arteries in the lungs. A pulmonary embolism may cause shortness of breath as well as chronic thromboembolic pulmonary hypertension (CTEPH), a rare disease where pressure in the pulmonary artery increases and causes the heart to fail. Indeed, that May, Doull was diagnosed with CTEPH. A lung scan revealed that blood clots in Doull's lungs were chronic.

In November 2011, Doull underwent surgery in an attempt to remove the blockage from her lungs, but the procedure proved unsuccessful. After the surgery, Doull was prescribed various medications to treat the pulmonary hypertension that had resulted from her CTEPH. None of these medications abated the disease. In 2015, Doull died from complications arising from CTEPH. She was forty-three years old.

b. Procedural history. Prior to her death, Doull and various family members (collectively, the plaintiffs) commenced this suit against the defendants, claiming negligence, failure to obtain informed consent, and loss of consortium.7 Four months before trial, the plaintiffs moved to amend their complaint to include the manufacturer of the progesterone cream, Women's International Compounding Inc. (WIC), as a defendant. The trial judge denied the plaintiffs’ motion.

At trial, the plaintiffs argued that Miller and Foster failed to obtain informed consent from Doull concerning the progesterone cream's risks and alternatives, that Foster failed to diagnose Doull's pulmonary embolism during the spring 2011 visits, and that Miller failed to supervise Foster adequately during all relevant times.

To support these claims, Dr. Paul Genecin, a primary care internal medicine physician and the plaintiffs’ expert witness, testified that natural progesterone was not any safer than synthetic derivations of the hormone, and that the cream likely caused Doull to develop blood clots. Genecin also testified that Foster had failed to investigate adequately Doull's shortness of breath complaints during the spring 2011 visits. He testified that diagnosis of Doull's pulmonary embolism during the spring of 2011 could have prevented the onset of CTEPH, and that Miller's failure to supervise Foster's actions constituted a breach of the duty of care.

Dr. Nicholas S. Hill, a pulmonologist and an expert for the defense, testified that there was "no evidence anywhere that indicates that progesterone cream applied to the skin increases the risk of clotting." Hill also disagreed with Genecin's assessment that Doull's CTEPH would have been preventable had Foster diagnosed it during the spring 2011 visits. Specifically, Hill testified that by the time Doull was diagnosed with CTEPH in May 2011, the disease "had been going on for a long time, probably months at least." According to Hill, the chronic nature of Doull's blood clots meant that her outcome would have remained the same had Foster diagnosed her with the disease during the spring of 2011.

The jury returned a verdict for the defendants and answered various special questions. First, the jury found that the defendants had not failed to acquire informed consent from Doull with respect to the progesterone cream. Second, although the jury did find that Foster negligently failed to diagnose Doull's pulmonary embolism, they found that this negligence was not the cause of either the harms suffered by Doull after her seizure-like event in 2011 or her death in 2015. Finally, the jury found that Miller had been negligent in his supervision of Foster, but that this negligence, too, had not harmed Doull.

Before the jury returned its verdict, the defendants filed a motion to require judicial approval for postverdict contact with jurors, which the judge granted. After the verdict, the plaintiffs filed a motion for a new trial, which the judge denied. The plaintiffs then appealed. We transferred the case from the Appeals Court to this court on our own motion.

2. Discussion. "We review the denial of a motion for a new trial for an abuse

of discretion, bearing in mind that a judge should exercise his or her discretion only when the verdict is so greatly against the weight of the evidence as to induce in his [or her] mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice" (quotation and citation omitted). DaPrato v. Massachusetts Water Resources Auth., 482 Mass. 375, 377 n.2, 123 N.E.3d 737 (2019).

a. Jury instructions. "In a civil trial, a judge should instruct the jury fairly, clearly, adequately, and correctly concerning principles that ought to guide and control their action" (quotation and citation omitted). DaPrato, 482 Mass. at 383 n.11, 123 N.E.3d 737. "The judge is not bound to instruct in the exact language of the [parties’] requests, however, and has wide latitude in framing the language to be used in jury instructions as long as the instructions adequately explain the applicable law" (quotation and citation omitted). Id. When reviewing jury instructions, an "appellate court considers the adequacy of the instructions as a whole, not by fragments" (citation omitted). Id.

The plaintiffs argue that they are entitled to a new trial based on several allegedly erroneous jury instructions regarding the defendants’ negligence. We consider these claims in turn.

i. Jury instructions on causation. The plaintiffs claim that the judge's instruction on the element of causation was erroneous. The judge instructed the jury using a but-for standard for factual causation. Specifically, the judge instructed:

"With regard to this issue of causation, the Defendant in question's conduct was a cause of the Plaintiff's harm, that is Laura Doull's harm, if the harm would not have occurred absent, that is but for the Defendant's negligence. In other words, if the harm would have happened anyway, that Defendant is not liable."

The plaintiffs argue that the judge was required to instruct the jury on a substantial contributing factor standard, instead of this but-for standard, because there were several possible causes of -- and multiple tortfeasors involved in -- Doull's injuries and death. The defendants disagree, contending that the instruction given was consistent with both Massachusetts law and the approach taken by the Restatement (Third).8 Because the plaintiffs objected to the instruction given by the trial judge, we review for prejudicial error. DaPr...

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