Kearns v. Ellis

• Decision Date: 03 July 1984
• Citation: 465 N.E.2d 294,18 Mass.App.Ct. 923
• Parties: Ann F. KEARNS, administratrix, v. F. Henry ELLIS, Jr.
• Court: Appeals Court of Massachusetts

Page 294

465 N.E.2d 294

18 Mass.App.Ct. 923

Ann F. KEARNS, administratrix, v. F. Henry ELLIS, Jr.

Appeals Court of Massachusetts,

Suffolk.

Argued May 16, 1984.

Decided July 3, 1984.

James C. Gahan, Jr., Boston (John T. Underhill, Boston, with him), for plaintiff.

Jacob J. Locke, Boston (Robert G. Conley, Boston, with him), for defendant.

Before GREANEY, C.J., and BROWN and KASS, JJ.

RESCRIPT.

1. It was the theory of the plaintiff's case on the counts as to which she had a verdict that the failure of the defendant, while out of town, to designate a member of the hospital staff to attend to the plaintiff's decedent (her husband) had contributed to the latter's death. The defendant, Dr. Ellis, is a cardiac-thoracic surgeon who operated on the decedent (Kearns) to place a prosthetic mitral valve in his heart. Fourteen days after surgery, on April 7, 1970, at about 9:30 a.m., and while Dr. Ellis was in Washington, D.C., Kearns took a cataclysmic turn for the worse. By 11:45 a.m., there was a tentative diagnosis that a rupture (dehiscence) of the sutures which held the artificial mitral valve in place had occurred. An alternative, though less likely, diagnosis was that Kearns had suffered a pulmonary embolism. To confirm the diagnosis, a cardiologist, at about 1:00 p.m., performed angiograms which confirmed the impression of disruption or other failure of the artificial mitral valve. The patient went into an operating room at 3:25 p.m. Dr. Ashraf, a thoracic surgeon, performed surgery to repair the mitral valve implant. He observed severe ventricular failure (attributable to the malfunctioning valve) and was unable to restore adequate heart action. Kearns died on the operating table.

A jury returned a verdict for the plaintiff, which the trial judge set aside by acting favorably on the defendant's motion for judgment notwithstanding the verdict. A judgment entered for the defendant. We think the judge acted correctly in accordance with the standards articulated in cases such as Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978); Abraham v. Woburn, 383 Mass. 724, 727, 421 N.E.2d 1206 (1981); O'Shaughnessy v. Besse, 7 Mass.App. 727, 728-729, 389 N.E.2d 1049 (1979); McCarthy v. Hauck, 15 Mass.App. 603, 604, 447 N.E.2d 22 (1983). Dr. Ellis testified that the patient's chances for survival would have been better had the valve sutures been repaired several hours earlier. There was no evidence, however, that the time elapsed between the onset of the patient's grave symptoms, the diagnostic procedures, and surgery was made excessive by reason of negligence. Least of all was there evidence that any delay in treating Kearns was attributable to the absence of Dr. Ellis. Such evidence as was admitted on the issue indicated the contrary, i.e., that the chief surgical resident was in telephone contact with Dr. Ellis at around noon of the fatal day and that Dr. Ellis did nothing to alter the course which the team of physicians on the scene had adopted. A contrary conclusion would have to rest on speculation. McCarthy v. Hauck, 15 Mass.App. at 609-610, 447 N.E.2d 22.

2. Nine years from the date the declaration was filed went by before the case came to trial. The plaintiff propounded no interrogatories and took no depositions. She presented no expert witnesses. At the conclusion of trial, the plaintiff moved to further amend her complaint by introducing theories of failure by Dr. Ellis to obtain the informed consent of Kearns to his [Dr. Ellis'] departure from Boston; failing to designate a cardiac-thoracic surgeon to act as his surrogate and failing to secure his patient's consent to that substitution; and failing to use reinforcement pads to strengthen the sutures' holding capacity. Passing the question whether any of these asserted failures would constitute unacceptable medical practice, the issues sought to be injected into the case were none of them the consequence of surprising evidence and all were well within the realm of the discoverable. To rebut them would have required expert testimony. The trial judge acted within her discretion in denying the motion to amend. See Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 291-293, 361 N.E.2d 1264 (1977); Consumers Sav. Bank v. Coven, 8 Mass.App. 594, 598-599, 395 N.E.2d 1331 (1979); Shaw v. Siegel, 13 Mass.App. 258, 263-265, 431 N.E.2d 949 (1982).

3. Trial began on September 23, 1981. In responses to the defendant's interrogatories filed by the plaintiff in 1978, she said she would have no expert witnesses. On September 21, 1981, two days before trial, plaintiff's counsel furnished the defendant with the name of an expert he proposed...