Glicklich v. Spievack

• Decision Date: 30 September 1983
• Parties: Gena GLICKLICH et al. v. Alan SPIEVACK et al.
• Court: Appeals Court of Massachusetts

Page 287

452 N.E.2d 287

16 Mass.App.Ct. 488

Gena GLICKLICH et al. v. Alan SPIEVACK et al.

Appeals Court of Massachusetts Middlesex.

Argued Jan. 11, 1983.

Decided Aug. 8, 1983.

Further Appellate Review Denied Sept. 30, 1983.

Clyde D. Bergstresser, Boston, Mary P. Squiers, Boston, with him, for plaintiffs.

Raymond J. Kenney, Jr., Boston, for Alan Spievack.

John A. Johnson, Boston, Joseph B. Bertrand, Boston, with him, for Joan R. Golub.

Before HALE, C.J., and ROSE and PERRETTA, JJ.

HALE, Chief Justice.

Gena Glicklich brought this malpractice action on behalf of herself and her son to recover for damages sustained as a result of the alleged negligent failure of the defendants, Drs. Golub, Jones, and Spievack, correctly to diagnose and treat her breast cancer. The jury returned verdicts for the plaintiffs as to Doctors Golub and Spievack, awarding $307,700 to Gena Glicklich and $92,275 to her son, Evren Celimli. A verdict was returned in favor of Dr. Jones. On special questions, the jury found that the plaintiff had been free of negligence and that Dr. Golub had caused $59,996 of the total damages, the remainder having been caused by Dr. Spievack.

Drs. Spievack and Golub each moved for judgment notwithstanding the verdict. The trial judge granted the defendants' motions, finding that there was insufficient evidence upon which a jury could conclude that any malpractice on the part of Dr. Spievack or Dr. Golub was causally related to damage sustained by the plaintiffs. The judge went on to hold that if the defendants were liable, then the jury would be warranted in finding that Evren Celimli was economically dependent on his mother and in awarding him damages and finding that Dr. Golub was liable only to the extent of $59,996 (implicitly finding that she was not a joint tortfeasor with Dr. Spievack and that Dr. Spievack's negligence was not foreseeable by her). Because the trial judge was "in doubt as to whether the rulings on the motions for judgment notwithstanding the verdict are correct" he reported those three rulings to this court.

In determining whether the judge acted properly in entering the judgment n.o.v., we apply the same standard of review as would apply to a review of a motion for a directed verdict. D'Annolfo v. Stoneham Housing Authy., 375 Mass. 650, 657, 378 N.E.2d 971 (1978). Moran Travel Bureau, Inc. v. Clair, 12 Mass.App. ---, ---, Mass.App.Ct.Adv.Sh. (1981) 1075, 1076, 421 N.E.2d 103. We therefore must determine 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." Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972), quoting from Kelly v. Railway Exp. Agency Inc., 315 Mass. 301, 302, 52 N.E.2d 411 (1943). Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 786, 443 N.E.2d 1302 (1982).

Viewing the evidence in that light, the jury could have found the following facts. In August, 1978, the plaintiff first felt a lump the size of a baby fingernail in her right breast. On August 17, 1978, she saw Dr. Golub, her physician at that time, with regard to the lump and blackish-green nipple discharge which she had been experiencing. Dr. Golub performed a physical examination of the plaintiff's breasts, took smears of nipple discharge, and advised the plaintiff to return in a week for a needle aspiration of the lump. The needle aspiration was performed on August 31, 1978, at which time there was no gross fluid return, and the lump did not collapse. Dr. Golub advised the plaintiff to call for the results of the lab report on the aspiration. The plaintiff was not advised to have any further procedures. She informed Dr. Golub that she would be attending Harvard in September and therefore would take advantage of the Harvard University Health Service (Health Service). She requested that Dr. Golub forward her records to the Health Service.

In September, 1978, the plaintiff called Dr. Golub for the results of the needle aspiration. Dr. Golub told the plaintiff that the lab report was negative and that she had nothing to worry about. However, due to the continued presence of the lump and nipple discharge, the plaintiff saw Dr. Jones at the Health Service in November, 1978. Dr. Jones found no predominant mass in either breast and diagnosed the plaintiff's condition as fibrocystic disease. The plaintiff was not told to return for a follow up with regard to her breast condition. In January, 1979, the plaintiff saw a Dr. Jessiman at the Health Service for another opinion on the breast lump. Dr. Jessiman was concerned about the lump and suggested that the plaintiff see a surgeon to determine if a biopsy was necessary.

Due to illness, the plaintiff did not seek a surgeon's opinion until February 6, 1979, at which time she saw Dr. Spievack at the Health Service. The plaintiff was still worried about the lump because it seemed to be getting larger. Following a physical examination, Dr. Spievack diagnosed the condition as cystic disease or papilloma and advised the plaintiff to have a mammogram. No other procedure was advised. The plaintiff had the mammogram on February 12, 1979, and on February 13 was told by Dr. Spievack that she did not have cancer and that she should return in two months.

On April 2, 1979, the plaintiff returned to Dr. Spievack with increased breast tenderness; she felt the lump was getting larger; and she was experiencing soreness under her arms. Dr. Spievack discussed with the plaintiff a study linking chocolate and coffee consumption with fibrocystic disease and told her to stop her use of these products and to return in two weeks. Because the plaintiff had not stopped drinking coffee and felt there had been no changes in the breast lump, she did not return to Dr. Spievack.

Finally, in May, 1979, the plaintiff again returned to the Health Service for yet another opinion on the lump which she felt was still getting larger and more painful. She saw a Dr. Eldred, who suggested that the plaintiff see a gynecologist. Unfortunately, the plaintiff was unable to get an appointment until June 15. Because the pain was getting worse, the plaintiff tried to get an earlier appointment but could not. When seen on June 15, 1979, by a Dr. Federschneider, she was told to see a surgeon immediately. She saw a Dr. Hechtman at Peter Bent Brigham Hospital that afternoon. He advised a biopsy which was performed on July 6, 1979, and revealed inoperable breast cancer. A regimen of chemotherapy and radiation was implemented and appeared to improve the plaintiff's condition, but in May of 1980, following a seizure, the plaintiff was diagnosed as having brain cancer as a result of metastasis of the primary breast cancer.

There was testimony at trial that good medical practice requires that a biopsy be advised following a needle aspiration in which gross fluid is not returned and that when Dr. Golub failed so to advise the plaintiff in August, 1978, her treatment of the plaintiff fell below standard practice. ¹ Several experts also testified that Dr. Spievack's treatment of the plaintiff violated accepted medical practice when he failed to advise the plaintiff to have a biopsy on February 6, February 13, and April 2, 1979. ² The trial judge did not report any issue with regard to the determination that Drs. Golub and Spievack were negligent, and we therefore proceed on the assumption that they were indeed negligent. We turn now to the issues reported.

1. Proximate Cause.

The burden is on the plaintiff to establish a causal connection between the negligence of the defendants and any damages she suffered. Semerjian v. Stetson, 284 Mass. 510, 512, 187 N.E. 829 (1933). Samii v. Baystate Medical Center, Inc., 8 Mass.App. 911, 912, 395 N.E.2d 455 (1979). In medical malpractice cases this causal connection must generally be established by expert testimony that the injury sustained was more probably than not a result of the doctor's negligence. Berardi v. Menicks, 340 Mass. 396, 402, 164 N.E.2d 544 (1960). See Delicata v. Bourlesses, 9 Mass.App. 713, 720, 404 N.E.2d 667 (1980). Testimony that such a relation is possible, conceivable, or reasonable, without more, is insufficient to meet this burden. DeFilippo's Case, 284 Mass. 531, 534-535, 188 N.E. 245 (1933). Berardi v. Menicks, supra. The liability of the defendants was not to be determined by the jury upon consideration of contingent, speculative, and possible results of treatment which might have been utilized to remedy or mitigate the consequences of the plaintiff's cancer, but upon proof to a fair preponderance of the evidence that had proper treatment been administered, she most probably would not have been injured to the same extent. Tucker v. Stetson, 233 Mass. 81, 84, 123 N.E. 239 (1919). See Clinis v. Post, 1 Mass.App. 859, 860, 304 N.E.2d 207 (1973).

The judge concluded that the plaintiff had failed to meet the burden of proving proximate cause, in part, because she had failed to demonstrate that she would have had the biopsy had Drs. Golub or Spievack so advised her. The law presumes however, that a warning, if given, will be heeded. Wolfe v. Ford Motor Co., 6 Mass.App. 346, 352, 376 N.E.2d 143 (1978). "The jury were free to [conclude that the plaintiff would have had the biopsy] absent some negating evidence binding on the plaintiffs." Ibid. No such evidence was present in this case.

The primary expert on causation was a Dr. Robbins. The judge was troubled by his testimony that the rate of spread of cancer "is completely undefinable on an exact level" and that he was unable to predict the rate of growth or metastasis in any particular person. The judge stated, "Given Dr. Robbins' testimony ... I do not know how I, let alone the jury, could have rationally determined what damage was caused by the inevitable course of Gena's cancer, and rationally assessed damages." On careful review of...