Forlano v. Hughes

• Decision Date: 13 December 1984
• Parties: Joseph R. FORLANO 1 v. Arthur L. HUGHES et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1315

471 N.E.2d 1315

393 Mass. 502

Joseph R. FORLANO ¹ v. Arthur L. HUGHES et al. ²

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 10, 1984.

Decided Dec. 13, 1984.

Stephen S. Young, Boston (James D. Smeallie, Boston, with him), for plaintiff.

David M. Gould, Boston, for Lahey Clinic Foundation, Inc., & others.

Charles P. Reidy, III, Boston, for Mete Saveren.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

Joseph Forlano brought this action in the Superior Court in Suffolk County. The complaint has many counts. In main part, the complaint alleges that the defendant doctors negligently treated Forlano when he went to them for a myelography, and that he suffers severe, incapacitating headaches as a result. Forlano brought negligence, deceit, breach of contract, and battery claims against the defendant Dr. Hughes; negligence and battery claims against the defendant Dr. Saveren; a negligence claim against the defendant Dr. Freidberg; and negligence and breach of contract claims against the defendant Lahey Clinic. ³ The trial judge submitted the case to the jury on special questions. ⁴ The jury returned a verdict for the plaintiff against all the defendants on all counts. The jury awarded Joseph Forlano $170,817 in damages against the defendants, Drs. Hughes, Saveren, Freidberg, and Lahey Clinic.

Defendants Drs. Hughes, Saveren, Freidberg, and the Lahey Clinic appealed on numerous grounds, claiming principally that the trial judge erred in denying their motions for a directed verdict and for judgment notwithstanding the verdict. The Appeals Court held, in a summary order and an unpublished memorandum, that there was insufficient evidence on the issue of causation to submit the case to the jury on any of the counts, and ordered the entry of judgment for the defendants. Forlano v. Lahey Clinic Foundation, Inc., 17 Mass.App. 1105, 457 N.E.2d 306 (1983). We granted the plaintiff's application for further appellate review. We order the entry of judgment for the defendants on all counts.

In reviewing the denial of the motions for directed verdict and for judgment notwithstanding the verdict, the same standard applies. The standard is "whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.' Poirier v. Plymouth, 374 Mass. 206, 212 (1978)." Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786, 443 N.E.2d 1302 (1982), quoting Abraham v. Woburn, 383 Mass. 724, 727-728, 421 N.E.2d 1206 (1981). In applying this standard, we examine the evidence in the light most favorable to the plaintiff. See, e.g., LaClair v. Silberline Mfg. Co., 379 Mass. 21, 23, 393 N.E.2d 867 (1979).

There was evidence as to the following. Forlano had a history of serious back problems. After three unsuccessful back operations, he was referred by his doctor to the Lahey Clinic for testing and evaluation. On his first visit he was examined by the defendant Dr. Hughes, among others. Dr. Hughes requested that Forlano return for a second visit, which he did. During that second visit, Dr. Hughes recommended that Forlano undergo a diagnostic procedure known as myelography. Forlano had heard of the procedure and was uneasy about it. He was afraid that the doctors would be unable to remove the dye which is injected into the spinal column during the procedure. He told Dr. Hughes that if he were to have it done, he would want "the best neurosurgeon" in the clinic to perform it. He did not immediately consent to the procedure. He returned to his home in Connecticut, discussed the procedure with his Connecticut physician and his wife, and then decided to undergo the procedure.

He returned to Boston on November 6, 1974, for the myelography. That day he saw Dr. Hughes, who assured him that the "best neurosurgeon," the defendant Dr. Freidberg, would perform the procedure. With that assurance, he checked into the New England Deaconess Hospital.

He was sedated the next morning and wheeled into the operating room. He was conscious throughout the procedure. In the operating room, he asked which of the three people there was Dr. Freidberg. The defendant Dr. Saveren said that Dr. Freidberg was not present, but that he, Dr. Saveren, would "prepare" him for the procedure. Dr. Saveren then proceeded to perform the entire procedure.

In performing myelography, the patient is strapped onto a moveable table. A physician inserts a needle into the spinal canal, withdraws spinal fluid, and then injects a radiopaque dye, in this case "Pantopaque," into the spinal canal. The table is manipulated so that the dye runs up and down the patient's spine. A radiologist takes pictures, or "myelograms," of the dye in the patient's spinal column. ⁵

Dr. Saveren injected the needle, withdrew the spinal fluid, and injected the Pantopaque. A pillow was inserted under Forlano's head. His head was held up whenever the table was tilted in such a way that his head might be lower than the rest of his body. When Dr. Saveren attempted to remove the dye, problems arose. Forlano was extremely anxious. He experienced great pain. Dr. Saveren paged Dr. Freidberg, but Dr. Freidberg never responded. Dr. Saveren removed the needle with no further attempts to remove the dye. Forlano was wheeled back to his hospital room.

Dr. Hughes visited Forlano in his hospital room that afternoon and told him not to worry about the dye; he indicated that the dye could be removed at a later date if necessary. Forlano left the hospital the next day. He never saw Dr. Saveren after the myelography, and he never met Dr. Freidberg. The dye has never been removed.

Approximately six months after the myelography, Forlano began experiencing severe, throbbing, bursting headaches unlike any others he had had. There was evidence that the cause of his headaches is the presence of the dye in his skull. The dye now cannot be removed from his skull. It absorbs into the body very slowly. His incapacitating headaches will be permanent.

Negligence claims against Drs. Hughes, Freidberg, and Saveren, and Lahey Clinic. The plaintiff argued to the jury that the negligent acts of the defendants resulted in the presence of Pantopaque in his skull, and that the dye trapped in his skull causes his incapacitating headaches. On appeal, the defendants argue that the judge should have allowed their motions for a directed verdict, or, alternatively, their posttrial motions for judgment notwithstanding the verdict. They claim that the plaintiff presented insufficient evidence on the issue of negligence and of causation for the negligence counts to be submitted to the jury. Specifically, they assert that the plaintiff presented insufficient evidence on the question how any negligent acts or omissions made by the defendants caused the Pantopaque to enter his skull. After a careful examination of the trial transcript, we are constrained to agree with the defendants.

Dr. Hughes testified that an X-ray taken before the myelography did not reveal the presence of any foreign material in Forlano's skull. The plaintiff's expert witness, Dr. James Merikangas, testified that Forlano had dye in his head when he treated him several years after the myelography. ⁶ However, the plaintiff did not introduce sufficient evidence on when--during the procedure or after the procedure--the dye entered his skull. ⁷ He did not, moreover, present sufficient evidence for the jury to conclude that if the dye entered during the myelography, it did so as a result of the defendants' negligence.

The plaintiff argues that the jury could infer negligence from the evidence that the dye was not intended to enter Forlano's head, that it is standard procedure for the patient's head to be held up whenever the operating table is tilted downwards, and that Forlano's head was so held. This alone is insufficient.

"It is only in exceptional cases that a jury instructed by common knowledge and experience may without the aid of expert medical opinion determine whether the conduct of a physician toward a patient is violative of the special duty which the law imposes as a consequence of this particular relationship." Haggerty v. McCarthy, 344 Mass. 136, 139, 181 N.E.2d 562 (1962), quoting Bouffard v. Canby, 292 Mass. 305, 309, 198 N.E. 253 (1935). Cf. Civitarese v. Gorney, 358 Mass. 652, 656, 266 N.E.2d 668 (1971); Glicklich v. Spievack, 16 Mass.App. 488, 492, 452 N.E.2d 287 (1983).

We note, also, that, when asked in cross-examination whether the dye could enter the skull during the myelography without anyone's departing from acceptable medical practice, the plaintiff's expert witness answered: "Well, that's a difficult question. The best practice would be that you wouldn't let it happen, but it does happen .... There are unfortunate accidents that are not malicious, but it can happen ...".

Thus, the plaintiff presented two possible ways for the dye to have entered his head, but only one of these ways--after the procedure--could have been due to the defendants' negligence. The plaintiff did not present sufficient evidence for the jury to decide which of the two possible ways he suffered his injury was more probable than not. ⁸ "While the plaintiff is not bound to exclude every other possibility of cause for his injury except that of the negligence of the defendant, he is required to show by evidence a greater likelihood that it came from an act of negligence for which the defendant is responsible than from a cause for which the defendant is not liable." Alholm v. Wareham, 371 Mass. 621, 626-627, 358 N.E.2d 788 (1976), quoting Bigwood v Boston & N. St. Ry., 209 Mass. 345, 348, 95 N.E. 751 (1911). See Restatement (Second) of Torts § 433B, comment b (1977). See also Carey v. General Motors Corp., 377 Mass. 736, 740, 387 N.E.2d 583 (1979); Glicklich v. Spievack, supra.

The plaintiff...