Grassis v. Retik

• Decision Date: 03 June 1988
• Docket Number: No. 87-290,87-290
• Citation: 25 Mass.App.Ct. 595,521 N.E.2d 411
• Parties: Julianne GRASSIS 1 v. Alan B. RETIK, et al. 2
• Court: Appeals Court of Massachusetts

Page 411

521 N.E.2d 411

25 Mass.App.Ct. 595

Julianne GRASSIS ¹ v. Alan B. RETIK, et al. ²

No. 87-290.

Appeals Court of Massachusetts Suffolk.

Argued Jan. 15, 1988.

Decided April 12, 1988.

Further Appellate Review Denied June 3, 1988.

Elizabeth N. Mulvey, Boston, for plaintiff.

D. Alice Olsen, Boston, for Robert J. Sher.

Lionel H. Perlo, Boston, for Alan B. Retik.

John P. Ryan, Boston, for Gianna Stellin.

Before PERRETTA, KAPLAN and DREBEN, JJ.

KAPLAN, Justice.

1. The plaintiff Julianne Grassis was born with a double ureter or double collecting system in her urinary tract. This malformation exposed her to infections as bacteria in her urine tended by "reflux" action to pass into the kidneys. The child early began to suffer such infections accompanied by fever. When she was about two and one-half years old, in January, 1980, showing extreme temperature, she was admitted on advice of her pediatrician to Lawrence General Hospital. In two and one-half days of hospitalization, she received two doses, thirty milligrams each, of the drug gentamicin, and the condition appeared to clear. During the month following her discharge from Lawrence General, however, Julianne experienced recurrent high temperatures. On February 20, again with excessive temperature, she was admitted to Children's Hospital in Boston under the care of the defendant Dr. Retik, chief of pediatric urology at Children's, who had seen Julianne earlier when her pediatrician turned to him for specialized assistance. It had been Dr. Retik's opinion that eventually the child should undergo surgery to correct the ureter problem.

In the manner common at Children's, Dr. Retik, the attending physician, worked with the assistance of assigned residents, all constituting a team. Two of these residents were the defendants Dr. Sher and Dr. Stellin, the former a resident in urology rotating for three months at Children's from Lahey Clinic, the latter a general surgery resident spending her third year at Children's after two years at a hospital in New York. Dr. Retik called in the defendant Dr. Grupe, chief of pediatric nephrology at Children's, to consult about the child's episodes of hypertension.

In addition to procedures such as the use of cooling blankets to reduce the child's fever, the child was given doses, at intervals of eight hours, of 25 milligrams of gentamicin, accompanied with doses of ampicillin, to combat the infection reaching into her kidneys. From February 20 to 27, she received nineteen such applications. On February 29, Dr. Retik performed the surgery he had foreseen. This was successful; Julianne had suffered no further bouts of kidney infection up to the time when she testified at trial in October, 1986.

About six months after the surgery, the child's parents began to observe behavior on the child's part which made them apprehensive that her hearing had become impaired. Tests confirmed that her hearing in each ear was about 35% of normal. The eighth cranial nerve was deteriorated.

2. The present malpractice action, commenced on February 7, 1983, may be taken broadly as charging negligence and failure to obtain informed consent.

Trial occupied seven days and was exhaustive and voluminous. The testimony of experts was of course central. For the plaintiff, Dr. Joseph A. Martino, a nephrologist, was called. (Plaintiff's counsel also interrogated Dr. Retik as part of the case in chief.) The expert witness for the defense was Dr. Grupe; originally named a defendant in the action, he was dismissed on plaintiff's motion at the close of her case. ³

Speaking in broad outline, omitting many details, we may summarize the plaintiff's submission thus. Gentamicin, a powerful drug, carried, as one of its possible side effects, impairment of hearing. So the "Physicians' Desk Reference" indicated. Dr. Martino thought Julianne's condition had not been so serious as to call for heroic measures, and therefore the use of gentamicin, at least in the sustained doses mentioned, was questionable. If gentamicin was thus employed, its use must be carefully monitored, and if kidney function--chiefly the filtering function--was seen to be impaired, the drug must be discontinued. Here it was indicated, according to certain serum creatinine levels, that function was being impaired, with danger that the patient's blood would become toxic with the gentamicin. A blood serum test could have been applied from time to time to measure toxicity, but the test was not employed. The expert concluded that treatment as a whole was below standard and that the hearing damage was causally related. Further, the plaintiff sought to prove that the child's parents were not informed of the relevant perils.

In stating the position of the defense, again we offer only an outline. In Dr. Grupe's opinion, the child was in a serious, life-threatening condition when she entered Children's. For that predicament, gentamicin plus ampicillin, working synergistically upon the infection (by streptococcus faecalis), were the drugs of choice. If kidney function was impaired, the prescription of gentamicin would indeed have to be reconsidered; but upon proper analysis of the data, including the serum creatinine levels, a treating physician could reasonably conclude there was no impairment of function. With normal kidney function and the low dosage of gentamicin that was applied for a relatively short period of time, there was only a very small or negligible possibility that the patient's blood would be affected toxically by this drug. So blood testing was unnecessary. The hearing loss might have been due to the infections, hypertension, or genetic fault; ⁴ it was not shown to have been caused by the gentamicin. Further, there was no failure to impart information to the parents.

3. As already noted, the plaintiff voluntarily dismissed Dr. Grupe as a defendant, and Dr. Stellin's motion for a direction was allowed at the close of the plaintiff's case, see note 3, supra (the plaintiff had previously waived any claim against Dr. Stellin regarding informed consent). At the close of all the evidence, the judge allowed Dr. Sher's motion for a directed verdict to the extent of the issue of informed consent. Thus the case went to the jury on the negligence issue with respect to Dr. Sher, and on the negligence and informed consent issues as to Dr. Retik. The jury brought in verdicts for these defendants.

On the plaintiff's appeal, she claims errors in the directions in favor of Dr. Stellin and Dr. Sher, and attacks the verdicts on the grounds of alleged errors committed by the judge in the course of trial. That the verdicts were adequately supported by the evidence is not disputed.

4. We deal first with the judge's alleged errors claimed to impeach the verdicts.

(a) As mentioned above, the plaintiff's counsel called Dr. Retik during the case in chief. On direct examination, Dr. Retik stated that he had not monitored blood levels (to assess possible toxicity from the gentamicin). Counsel said, "And that was a violation of what the 'PDR' [Physicians' Desk Reference] calls for, was it not, Doctor?" Counsel for all defendants objected, and the judge said: "[T]he 'desk book' has no legal significance. It is a book put out of studies that are made by the pharmaceutical companies. It has no force when you say 'does it violate that.' There is nothing to violate." Plaintiff's counsel said, "I object" (but did not seek opportunity to elaborate). The judge said, "You may ask him if it [i.e., the omission to monitor] did not conform with the suggestions. But be careful with your language."

The question to Dr. Retik using the word "violated" was improperly tendentious for the reason indicated by the judge: it could be understood to imply that a physician who did not follow the PDR was by that token irretrievably guilty of a breach of professional standards. The judge was right to recommend that counsel improve his interrogation. Counsel went on with his questioning of Dr. Retik.

This is not the occasion to go into the issue how far the PDR may figure as probative of the proper medical standard in the use of a drug or as putting physicians on notice of facts or opinions about a drug. ⁵ There can be no claim, however, that the PDR, without more, amounts to an absolute rule of conduct, as counsel's question intimated. We do not read the plaintiff's expert as making so strong a claim; Dr. Retik said PDR was "helpful in a number of ways" but was not the "gold standard," and Dr. Grupe said PDR was "a handy, but incomplete collection of information," not a "medical text" or the "only standard." The judge did not deal specifically with the PDR in his instructions and no objection was taken on that account.

(b) In his closing argument to the jury, Dr. Retik's counsel stressed that the plaintiff had not come forward with adequate proof that the doses of gentamicin had caused Julianne's loss of hearing. ⁶ An audiologist had testified to the degree of the loss, but regarding causation one would want testimony by otolaryngologists (ear, nose, and throat specialists) and none had been presented. Counsel for Dr. Sher, in his closing argument, made the same point. He also said, "Where is the plaintiff's otolaryngologist, Dr. Friedman?" Dr. Ellen Friedman had examined Julianne when concern developed about her hearing, and had referred the child to the audiologist for hearing measurement. Following all the closing arguments, the plaintiff's counsel objected to the mention of Dr. Friedman. He was contending, in effect, that this suggested, erroneously, she was a "missing witness": a witness the plaintiff would have called if her expected testimony would help her patient's lawsuit, so that the failure to call her justified an inference that her testimony would be unfavorable. See the formulation in Commonwealth v. Franklin, 366 Mass. 284, 292-294, 318 N.E.2d 469 (1974); Commonwealth v. Schatvet, 23 Mass.App.Ct. 130,...