Drake v. Goodman

• Decision Date: 03 May 1982
• Citation: 386 Mass. 88,434 N.E.2d 1211
• Parties: Christine DRAKE et al. 1 v. Harold F. GOODMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1211

434 N.E.2d 1211

386 Mass. 88

Christine DRAKE et al. ¹ v. Harold F. GOODMAN.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 4, 1982.

Decided May 3, 1982.

William E. Searson, III, Boston (James P. McCarthy, Boston, with him), for plaintiffs.

Allan E. Taylor, Boston, for defendant.

Before HENNESSEY, C. J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

In this medical malpractice action, the jury returned a verdict for the defendant. On their appeal, the plaintiffs challenge the rulings of the trial judge concerning the admissibility of evidence. ² They object to the admission of certain testimony of two defense experts concerning the cause of the minor plaintiff's injuries and to the denial of their request to present a rebuttal witness. There was no error; we affirm the judgment.

For a general background of the case, we summarize certain of the evidence. The plaintiff Christine Drake testified to sustaining an injury to her left hand while attending school on September 12, 1977, and to being treated by the defendant, who placed a circular plaster cast on her arm from her fingers to her elbow. Three days later her fingers had turned blue; they were swollen and cold. Her mother took her to the defendant, who removed the cast and replaced it with a cast of a different kind. Three days later, her fingers were still blue and swollen. The fingers started to "claw up." She returned to the defendant who recommended an operation. Christine's parents took her to another doctor, and she was admitted to a hospital in September. After five days of observation and physical therapy, she was discharged. One attending physician gave a diagnosis of sympathetic dystrophy, a condition in which the sympathetic nervous system becomes hyper-reactive and causes constriction and spasm of the blood vessels, and damage to the tissues. She was again hospitalized in October and November, 1977, from February to June, 1978, and in August, 1980. It was only after an operation during this last admission that her hand was permanently unclenched.

There was a substantial dispute as to whether the clenched hand was caused by the tightness of the cast or was caused by circumstances having nothing to do with any physical injury, at least an injury caused by the defendant. A medical witness for the plaintiffs testified that the type of cast first applied was inappropriate; that the cast was too tight; that the defendant did not supervise the patient adequately; and that the clenched hand was caused by the defendant's negligence. Another witness for the plaintiffs, an orthopedic surgeon, testified on cross-examination that there was a psychological element to the problem; that under anesthesia the fingers could be straightened; and that the defendant had caused no serious physical injury to Christine. The defendant offered two expert witnesses who testified that the clenched hand was not the product of any physical injury.

The plaintiffs' case-in-chief was based on a claim that the defendant's negligence in putting on a cast that was too tight and in not properly supervising Christine's treatment caused physical injuries, particularly the clenched hand. Although in the course of the plaintiffs' case, there was evidence that Christine had certain psychological problems, the plaintiffs made no attempt in their case-in-chief to demonstrate that a negligently caused physical injury caused psychological problems which in turn caused the clenched hand.

The defendant's experts, both orthopedic surgeons, testified in effect that Christine's clenched hand had no connection with anything the defendant had or had not done, and that the clenched hand was the product of a psychological rather than a physical problem. One characterized it as "conversion hysteria," and the other described the condition as a "clenched fist syndrome," not related to physical injury.

The plaintiffs argue that the judge erred in permitting these orthopedic witnesses to testify to a psychological basis for Christine's clenched hand. We shall assume that the plaintiffs properly raised the question of the qualifications of these witnesses. These orthopedic surgeons had treated Christine. They had seen similar cases in which a clenched hand had no underlying physical cause but was the consequence of a psychological disorder. They did not testify as to the cause of the psychological disorder but simply to the absence of a direct physical cause for the clenched hand.

The judge was warranted in finding that these orthopedic specialists in surgery to the hand were qualified to express the opinions they did. It is a matter on which the discretion of the presiding judge is to be respected if there is evidence to warrant the judge's conclusion that a witness was competent to express an opinion. See Commonwealth v. Seit, 373 Mass. 83, 92, 364 N.E.2d 1243 (1977); Commonwealth v. Boyd, 367 Mass. 169, 182, 326 N.E.2d 320 (1975); Commonwealth v. Devlin, 365 Mass. 149, 152, 310 N.E.2d 353 (1974). The judge's ruling that the witnesses were qualified to testify to the cause of the clenched hand is particularly justified in this case because they had treated Christine. See Baker v. Commercial Union Ins. Co., --- Mass. ---, ---, Mass.Adv.Sh. (1981) 176, 180, 416 N.E.2d 187; Kramer v. John Hancock Mut. Life Ins. Co., 336 Mass. 465, 467-468, 146 N.E.2d 357 (1957); Commonwealth v. Vaughn, 329 Mass. 333, 335, 108 N.E.2d 559 (1952); Hastings v. Rider, 99 Mass. 622, 625 (1868).

At the conclusion of the defendant's case, the plaintiffs sought to present a rebuttal witness. The defendant was aware that the plaintiffs might offer such a witness, although that information was transmitted by letter rather than by supplemental answers to interrogatories filed pursuant to Mass.R.Civ.P. 26(b) (4), 365 Mass. 772 (1974). ³ From the colloquy between the plaintiffs' counsel and the judge, it appeared that the witness would not be immediately available. The plaintiffs' counsel said that the witness would testify that Christine's physical injury "would be an adequate producing cause of the psychiatric damage that she was treated for ... at Children's Hospital ... in the Psychosomatic Unit." When pressed as to whether the witness would say the physical injury was the cause of the psychological damage, plaintiffs' counsel indicated that the witness would testify that "the physical injury caused a psychiatric reaction." We assume that the physical injury referred to was an injury allegedly resulting from the defendant's negligence. The defendant, in opposing the plaintiffs' right to present a rebuttal witness, argued that, if the witness were allowed to testify, the defendant would have to present witnesses in surrebuttal. ⁴

We pause at this point to discuss the law concerning the right or privilege of a party to present rebuttal evidence. A trial judge has substantial discretion whether to permit the presentation of rebuttal evidence. See Commonwealth v. Clark, 379 Mass. 623, ---, Mass.Adv.Sh. (1980) 237, 245, 400 N.E.2d 251; Commonwealth v. Wood, 302 Mass. 265, 267-268, 19 N.E.2d 320 (1939). We subsequently discuss the judge's ruling in terms of an abuse of discretion and conclude that she did not abuse her discretion. There are circumstances, however, in which a party may present rebuttal evidence as a matter of right and in which the denial of...