Keene v. Brigham and Women's Hospital, Inc.
| Citation | 775 N.E.2d 725,56 Mass. App. Ct. 10 |
| Decision Date | 19 September 2002 |
| Docket Number | No. 01-P-415.,01-P-415. |
| Parties | Dylan KEENE<SMALL><SUP>1</SUP></SMALL> v. BRIGHAM AND WOMEN'S HOSPITAL, INC. |
| Court | Appeals Court of Massachusetts |
Chris A. Milne, Dover (Marc G. Perlin, Boston, with him) for the plaintiff.
Kenneth W. Salinger, Boston (Steven L. Schreckinger with him) for the defendant.
Present: PORADA, LENK, & GREEN, JJ.
Both the plaintiff and the defendant appeal from a judgment of the Superior Court awarding the plaintiff 54,108,311.66 in damages against the defendant on his amended complaint for medical malpractice. The defendant contends that the entry of a default against it by a Superior Court judge as a sanction for its failure to produce lost hospital records under Mass. R.Civ.P. 37(b)(2)(C), as amended, 390 Mass. 1209 (1984), was not warranted by the circumstances of this case and that the judge lacked the power to strike, as an additional sanction, the statutory $20,000 cap on damages recoverable from a charitable corporation for a tort committed in the course of the performance of its charitable purposes under G.L. c. 231, § 85K. The plaintiff claims that the Superior Court judge who presided at the hearing on the assessment of damages erred in failing to award damages to him for his loss of enjoyment of life now and in the future and, thus, that the damages awarded him are inadequate. We affirm.
We summarize the pertinent factual and procedural background as a backdrop for the analysis of the issues raised. The plaintiff was born on May 15, 1986, at 1:07 A.M. at the defendant hospital. At 6:30 A.M. on that date, he was discharged from the defendant's neonatal intensive care unit to the regular nursery with a one-page discharge note which states, in pertinent part, "watch for [signs and symptoms] of sepsis ... hold antibiotics pending CBC [complete blood count] results & cultures." The records for the next twenty hours of the plaintiff's care are missing. The records resume on May 16, 1986, at 2:30 A.M.,2 and they indicate that the plaintiff went into septic shock and shortly thereafter began having seizures. Subsequent testing revealed that the plaintiff had contracted neonatal sepsis and meningitis which resulted in profound brain damage. The plaintiff was discharged from the hospital on June 18, 1986.
On May 12, 1995, (almost nine years after his birth),3 the plaintiff, through his parents, commenced this action for medical malpractice on the ground that the defendant had failed properly to diagnose or treat the plaintiff for the sepsis and meningitis, resulting in serious injury to him.4 In its answer to the complaint, the defendant asserted, as affirmative defenses, charitable immunity and the cap on damages against charitable corporations set forth in G.L. c. 231, § 85K.
On October 18, 1995, the plaintiff served the defendant with a notice under Mass. R.Civ.P. 30(b)(6), 365 Mass. 782 (1974), to take its deposition on November 2, 1995. The plaintiff sought, among other information, the names, addresses, licenses held by, and board certifications of any doctor, nurse, or other person involved in the treatment and care of the plaintiff on May 14, May 15, and May 16, 1986, including the names of those doctors and nurses involved in the decision whether or not to give the plaintiff antibiotics on those dates. Although the defendant agreed to furnish other information requested in the notice to take its deposition, the defendant by letter objected to this specific request. The deposition did not go forward on November 2, 1995.
The plaintiff then served two notices to take the deposition of the defendant on January 16, 1996, seeking the identity, location, and production of the hospital records for the plaintiff and his mother for the period from May 15, 1986, at 6:35 A.M. to May 16, 1986, at 2:30 A.m., as well as all records pertaining or relating to the plaintiff for May or June of 1986; the plaintiff repeated his request for the names, addresses, licenses held by, and board certification of all doctors and nurses involved in the treatment of the plaintiff and his mother for the period from May 14 through May 16, 1986. In response to those notices, the defendant sought a protective order from a justice of the Superior Court on January 15, 1996, claiming that the requests were unduly burdensome and that the plaintiff was already in possession of all records available to the defendant. A justice of the Superior Court denied the motion for a protective order on February 23, 1996.
The plaintiff then served anew two notices to take the deposition of the defendant on March 12, 1996, and sought the same information and records requested in the prior deposition notices. At the scheduled deposition, the defendant produced two witnesses from the defendant's medical records department who testified that they could find no records for the period in question; did not know the names of the doctors or nurses who treated the plaintiff for the relevant time period, and had made no attempt to ascertain the names of the doctors or nurses. The deposition was continued until March 25, 1996, at which time the same two witnesses acknowledged that they had made no further effort to identify the doctors or nurses who treated the plaintiff.
On April 12, 1996, the plaintiff filed a motion for sanctions, requesting that the defendant be precluded from offering any testimony from any doctor or nurse involved in the treatment or care of the plaintiff for the period of time from May 15, 1986, at 6:35 A.M. through May 16, 1986, at 12:00 A.M., because of the failure of the defendant to identify the doctors or nurses involved in the treatment of the plaintiff during this time period. The defendant opposed the motion in writing, noting that the defendant had not violated any court order to produce this information. The defendant also disclosed the steps it had taken to locate the records and information: specifically checking the medical records of the eighty-three babies born at the hospital during the relevant time period of May 14 through May 16, 1986. A judge of the Superior Court scheduled a hearing on the plaintiff's motion for sanctions for May 3, 1996, and ordered the defendant's chief medical record librarian as well as any other medical record librarians involved in attempting to locate the plaintiffs medical records to attend. The plaintiff then filed a supplemental request for sanctions asking that the defendant be defaulted and that the affirmative defense of charitable immunity be stricken.5 Although no order for production of the missing records was subsequently entered on the docket, at the hearing the judge stated that the defendant was to make an effort to determine the names and addresses of the doctors who cared for the plaintiff during the time period of the missing records and to ascertain from them if they had copies of the hospital records or other pertinent information in their files; moreover, the judge stated that the defendant was also to make inquiry of Harvard Risk Management6 when the first report of the incident occurred.
On or about June 6, 1997, the plaintiff renewed his motion for a default judgment on the ground that the defendant had failed to produce the missing records or to supply him with the names and addresses of the doctors who cared for the plaintiff during the period covered by the lost records. After a hearing on July 29, 1997, at which the defendant detailed what it had done to comply with the plaintiff's request for production of the records or an equivalent substitute, the judge ordered, on September 30, 1997, that the defendant be defaulted and that its charitable immunity defense be stricken on the grounds that: the missing records and information were critical to the plaintiffs proof of his claim, and without those records, the plaintiffs claim would be irreparably prejudiced; no lesser sanction was appropriate; the defendant must bear the responsibility for the loss of the records because it was required by law to preserve the same and it had failed in its statutory duty; and the imposition of those penalties would deter future litigants from similar abuses. The judge also found that it was appropriate to strike the statutory damage cap because the defendant's failure to produce those records or to identify the doctors or nurses responsible for the care of the plaintiff during the period of the missing records had deprived the plaintiff of the opportunity to recover damages from those individuals directly at fault.
Subsequent to the entry of default, the plaintiff moved for a hearing on the assessment of damages. At that hearing the plaintiff sought to recover, as a separate element of damages, an amount for the loss of the enjoyment of life that he would have experienced but for his injury. The defendant objected on the grounds that those losses could only be recovered as a component of pain and suffering to the extent that they actually give rise to such suffering by virtue of the plaintiffs conscious awareness of them, and that, because the plaintiffs cognitive capacity makes him unable to have any such awareness, he was not entitled to compensation for them. The judge adopted the defendant's position and ruled that the plaintiffs general damages must be limited to compensation for physical and mental pain and suffering that the plaintiff has actually experienced and will experience in the future; otherwise, such an award would serve only to punish the defendant. The judge awarded the plaintiff the total sum of $4,108,311.66 in damages for past medical expenses, future costs of care, lost earning capacity, and general damages together with interest from the date of the filing of the action.
We now turn to the issues raised in this appeal.
1. Discovery sanctions.
(a) Default sanction. In...
To continue reading
Request your trial
-
Short v. Marinas U.S. Ltd. P'ship & Another.1
...Greenleaf v. Massachusetts Bay Transp. Authy., 22 Mass.App.Ct. 426, 429, 494 N.E.2d 402 (1986); Keene v. Brigham & Women's Hosp., Inc., 56 Mass.App.Ct. 10, 16, 775 N.E.2d 725 (2002), S.C., 439 Mass. 223, 235, 786 N.E.2d 824 (2003).4 “We do not consider [a judge's] discretion abused unless i......
-
CMJ Mgmt. Co. v. Wilkerson
...less drastic sanctions could be imposed; ... and the deterrent effect of the sanction." Keene v. Brigham & Women's Hosp., Inc ., 56 Mass.App.Ct. 10, 21, 775 N.E.2d 725 (2002), S .C ., 439 Mass. 223, 786 N.E.2d 824 (2003).In considering the culpability of the party, it is not contested that ......
-
Cahaly v. Benistar Prop. Exch. Trust Co.
...violations, for its failure to supplement the plaintiffs' interrogatories in 2002. See, e.g., Keene v. Brigham & Women's Hosp., Inc., 56 Mass.App.Ct. 10, 21, 775 N.E.2d 725 (2002), S.C.439 Mass. 223, 235, 786 N.E.2d 824 (2003); Short v. Marinas USA Ltd. Partnership, 78 Mass.App.Ct. 848, 853......
-
In re Guardianship of B.V.G.
...Union v. Massachusetts Bay Transp. Authy., 392 Mass. 407, 408, 467 N.E.2d 87 (1984). See also Keene v. Brigham & Women's Hosp., Inc., 56 Mass.App.Ct. 10, 11, 775 N.E.2d 725 (2002), S.C., 439 Mass. 223, 786 N.E.2d 824 (2003). Open factual disputes are noted.B.V.G., born in 1993, suffers from......