Harlow v. Chin

• Citation: 405 Mass. 697,545 N.E.2d 602
• Decision Date: 19 October 1989
• Docket Number: No. S-4756,S-4756
• Parties: William HARLOW v. Danny CHIN et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts

Page 602

545 N.E.2d 602

405 Mass. 697

William HARLOW v. Danny CHIN et al. ¹

No. S-4756.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Sept. 14, 1988.

Decided Oct. 19, 1989.

Edward B. Hanify (Thomas H. Hannigan, Jr., and Lee C. Rubin, Boston, with him), for defendants.

Frederic N. Halstrom (Maureen A. Griffin, Boston, & Peter A. Donovan, Newton, with him), for plaintiff.

James M. Shannon, Atty. Gen., and Lawrence P. Fletcher-Hill, Asst. Atty. Gen., for Dept. of Public Welfare, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

The defendants in this medical malpractice action appeal from a judgment in favor of the plaintiff, William Harlow. The plaintiff alleges that the negligence of Dr. Danny Chin and Massachusetts General Hospital caused him to become a quadriplegic. The jury, in answer to special questions, found the defendants negligent, and found the plaintiff thirteen per cent comparatively negligent. A judgment for $6,660,720, not including prejudgment interest, was entered against both defendants. ² The defendants argue that the evidence was insufficient to support a finding of either negligence or causation, that improper arguments of plaintiff's counsel necessitated a new trial, that the judge erred in his application of the medical malpractice statute, G.L. c. 231, § 60G (1988 ed.), and that the judge made other erroneous rulings. The plaintiff cross appeals, claiming that the evidence is insufficient to support a finding of thirteen per cent comparative negligence. We granted the defendants' application for direct appellate review.

We conclude that the record contains sufficient evidence to support the jury award, and that the plaintiff's closing arguments, although improper, do not necessitate a new trial. We remand to the Superior Court, however, to enter a judgment against Massachusetts General Hospital limited by the statutory cap of $20,000, pursuant to G.L. c. 231, § 85K (1988 ed.), and to determine whether certain prejudgment benefits received by the plaintiff should be deducted from the award against Dr. Chin.

In the light most favorable to the plaintiff, the jury could have found the following facts. On February 11, 1982, the plaintiff slipped and fell while working on an oil truck. He hit the back of his neck and his head on the seat. The plaintiff felt a sharp pain in his left leg, the back of his neck, and his trapezius area, and a sharp pain from his left shoulder down to his left hand. He felt tingling in the fingertips of his right hand. The pain did not go away by itself. On February 15, 1982, the plaintiff sought medical care at Chelsea Memorial Health Care Center, a unit of Massachusetts General Hospital.

After speaking to a receptionist and a triage nurse, the plaintiff was examined by Dr. Chin. The plaintiff told Dr. Chin that he had hit the back of his neck, and that he was experiencing pain down his neck and upper back, and down his arm and into his hand, and that he felt tingling in the fingertips of his right hand. Dr. Chin spent from two to five minutes examining the plaintiff. Dr. Chin felt the back of the plaintiff's neck and tapped his elbows and kneecaps. The medical history Dr. Chin recorded during the examination consisted of "[c]omplaints of pain, left trapezius, increased by turning head or lifting, exam." His examination was recorded as "[l]eft trapezius tender and in spasm, left shoulder full range of motion, no tenderness, deep tendon reflexes, bi[c]eps equal to two plus bilaterally." Dr. Chin diagnosed the plaintiff as having a muscle spasm. Dr. Chin recommended no heavy lifting. He told the plaintiff to apply heat and take aspirin and Flexeril, a muscle relaxant that he prescribed. Dr. Chin failed to tell the plaintiff to return if the pain stayed the same or got worse.

The plaintiff took the Flexeril for the next ten days. He stayed home from work for eighteen days because of the pain. On March 5, 1982, the pain became worse and entered the plaintiff's right leg for the first time. The plaintiff returned to the hospital and collapsed while getting onto an examination table. He was rushed to Massachusetts General Hospital, where it was determined that he had a herniated cervical disc at the C-4, C-5 level. The plaintiff underwent surgery, which was unsuccessful. The plaintiff is now quadriplegic and will be so for life.

1. Negligence. "To entitle the plaintiff to go to the jury there must be sufficient evidence to warrant a finding (1) of negligence on the defendant's part, and (2) of a causal relationship between the negligence and the plaintiff's injuries." Civitarese v. Gorney, 358 Mass. 652, 655, 266 N.E.2d 668 (1971). The defendants claim that the evidence presented at trial was insufficient to support a verdict either that the defendants were negligent, or that the actions of the defendants proximately caused the plaintiff's injuries. We disagree.

The test for determining whether the jury could have found that the defendants were negligent is whether the evidence, construed most favorably to the plaintiff, could not support a verdict for the plaintiff. Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978). We must determine whether anywhere in the evidence, from whatever source derived, can be found any combination of circumstances in favor of the plaintiff. Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972).

The jury could have believed from the expert testimony that Dr. Chin, during his meeting with the plaintiff, deviated from good medical practice in the following ways. When faced with a patient complaining of the plaintiff's symptoms, Dr. Chin should have taken a more detailed medical history, inquiring about visual problems, sensory motor deficits, numbness, tingling, and whether the pain radiated. Dr. Chin should have conducted a more extensive neurological examination, beyond the rudimentary examination that he performed. Most importantly, Dr. Chin should have told the plaintiff to return in two to three days if the pain continued. ³ Thus, the record supports the finding that Dr. Chin was negligent in his examination of the plaintiff, in his failure to explore other possible diagnoses, and in his failure to give the plaintiff warnings and explanations adequate for follow-up care.

2. Causation. A plaintiff in a medical malpractice action has the burden of proving that the physician's negligence was the proximate cause of the plaintiff's injuries. Murphy v. Conway, 360 Mass. 746, 749, 277 N.E.2d 681 (1972). Semerjian v. Stetson, 284 Mass. 510, 512, 187 N.E. 829 (1933). This causal link generally must be established by expert testimony that the injury was more probably than not a result of the physician's negligence. See Berardi v. Menicks, 340 Mass. 396, 402, 164 N.E.2d 544 (1960). The question of causation is generally a question of fact for the jury. Mullins v. Pine Manor College, 389 Mass. 47, 58, 449 N.E.2d 331 (1983). Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327, 293 N.E.2d 875 (1973). "To withstand a motion for a directed verdict on the issue of proximate causation, the plaintiff need only demonstrate that there was a greater likelihood that the harm of which the plaintiff complains was due to causes for which the defendant was responsible." Colter v. Barber-Greene Co., 403 Mass. 50, 54-55, 525 N.E.2d 1305 (1988).

The plaintiff argues that if Dr. Chin had not acted negligently, but instead had told the plaintiff about other possible diagnoses and had told the plaintiff to return if the pain continued, the plaintiff would have had an excellent chance of avoiding his quadriplegia. The defendants assert that the evidence on causation was insufficient and the plaintiff's case therefore should not have gone to the jury. We conclude that there was sufficient evidence on the issue of causation.

The plaintiff has met the burden of proving that the defendants' negligence caused the harm he actually suffered. As we concluded above, the plaintiff met his burden of proving negligence by showing that the defendants failed to exercise due care in rendering medical care, a service which was necessary for the plaintiff's protection. See Mullins v. Pine Manor College, supra 389 Mass. at 53, 449 N.E.2d 331. The plaintiff's expert stated at trial that Dr. Chin should have told the plaintiff to return within three days if the pain continued. The law permits an inference that a warning, once given, would have been followed. Wolfe v. Ford Motor Co., 6 Mass.App.Ct. 346, 352, 376 N.E.2d 143 (1978). Thus, the jury could conclude that the plaintiff would have returned to the emergency room within three days.

One of the plaintiff's experts further stated that once the plaintiff returned to the emergency room, proper medical procedure would have required that medical practitioners treat the plaintiff with the following care. ⁴ The medical practitioners would have the plaintiff undergo x-rays, which they would then read immediately. No fracture, dislocation or tumor having been found, they would have the plaintiff undergo a CAT scan. In light of the plaintiff's symptoms at the time, the CAT scan would have been positive, showing a bulge or herniated disc. They would have immobilized and observed the plaintiff, and barring any change, would have operated on him earlier. Early surgical intervention would probably have been successful in preventing quadriplegia.

3. Closing arguments. Both the plaintiff and defendants raise numerous objections to the closing arguments of the opposing side. The defendants argue that the improprieties in plaintiff's counsel's argument make a new trial necessary. We agree that the argument by plaintiff's counsel was egregious and "improper under long established, and well understood, principles." Leone v. Doran, 363 Mass. 1, 18, 292 N.E.2d 19 (1973). We conclude, however, that the strong,...