Letch v. Daniels

• Decision Date: 04 November 1987
• Citation: 514 N.E.2d 675,401 Mass. 65
• Parties: Johanna L. LETCH v. Arthur A. DANIELS, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 675

514 N.E.2d 675

401 Mass. 65

Johanna L. LETCH v. Arthur A. DANIELS, Jr.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 11, 1987.

Decided Nov. 4, 1987.

Michael E. Festa, Melrose, for plaintiff.

John F. Finnerty, Jr., Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

LIACOS, Justice.

The plaintiff, an unemancipated minor, brought this action by her mother and next friend, Donna Letch, alleging dental malpractice by the defendant, a pedodontist. The defendant is a dentist specializing in the treatment of children's teeth. The defendant's treatment of the plaintiff, a child then about eight years old, involved orthodontia, the specialty of correcting the alignment and positioning of teeth. The plaintiff claims that, as a result of the defendant's negligent treatment, she developed root resorption in several of her teeth, necessitating years of expensive corrective procedures and the likely loss of the affected teeth.

During the course of the trial, the plaintiff called Dr. Karel Malovany to testify as an expert in orthodontia. Malovany's education, training, and practice qualified him as an orthodontist. The trial judge accepted him as such. Malovany testified about his dental examinations of the plaintiff, about the plaintiff's root resorption problem, and about the apparent causes of her condition. However, the judge precluded the witness from testifying to the appropriate standard of care for the plaintiff's course of treatment, since Malovany was not a pedodontist. Without expert testimony on this issue in evidence, the judge felt compelled to order a directed verdict for the defendant. The Appeals Court, in an unpublished memorandum and order, reversed and ordered a new trial. 23 Mass.App.Ct. 1107, 503 N.E.2d 479 (1987). We granted the defendant's application for further appellate review. We reverse the judgment and remand for a new trial.

Expert testimony. The plaintiff argues that it was error for the trial judge to exclude Malovany's testimony regarding the appropriate standard of care solely on the ground that he was not a pedodontist. We agree. Although a trial judge has broad discretion in determining the qualifications of a witness to testify as an expert, his decision will not be upheld if it is erroneous as matter of law. Louise Caroline Nursing Home, Inc. v. Dix Constr. Corp., 362 Mass. 306, 309, 285 N.E.2d 904 (1972). Accord Dorsyl Realty, Inc. v. Worcester Redevelopment Auth., 357 Mass. 777, 778, 258 N.E.2d 926 (1970).

The issue in this case is not the competence of Malovany as an expert witness. After hearing the witness's credentials as an orthodontist, the judge allowed detailed testimony concerning Malovany's examination of the plaintiff and his expert opinion on the causes of her condition, including opinions based on hypothetical questions. ¹ Toward the end of this witness's testimony, the plaintiff attempted to elicit an opinion about the requisite standard of care of a pedodontist engaging in specified interceptive orthodontic treatments. ² The judge sustained the defendant's objection to such testimony. Of his own accord, the judge raised the rationale that the witness could not so testify because he was not a pedodontist. ³ The judge sustained objections to additional questions addressing the standard of care to be employed by a dentist involved in orthodontia and of a pedodontist undertaking certain enumerated orthodontic processes.

A medical expert need not be a specialist in the area concerned nor be practicing in the same field as the defendant. "It is well established that the professional specialty of a medical practitioner offered as a witness need not be precisely and narrowly related to the medical issues of the case. Thus, it has been held that a judge, in his discretion, properly admitted the opinions of a general practitioner in a case which related to specialized medical issues." Kapp v. Ballantine, 380 Mass. 186, 192-193 n. 7, 402 N.E.2d 463 (1980). Accord Commonwealth v. Boyd, 367 Mass. 169, 182-183, 326 N.E.2d 320 (1975) (expert need not be a specialist in the field); Gill v. North Shore Radiological Assocs., 10 Mass.App.Ct. 885, 886, 409 N.E.2d 248 (1980) (deeming it unnecessary "for the plaintiff's medical expert to be a specialist in the area concerned"); Samii v. Baystate Medical Center, Inc., 8 Mass.App.Ct. 911, 911-912, 395 N.E.2d 455 (1979) (approving expert testimony on standard of care in obstetrics from a specialist in internal medicine familiar with subject matter). The crucial issue is whether the witness has sufficient "education, training, experience and familiarity" with the subject matter of the testimony. Gill, supra. Samii, supra. See also Commonwealth v. Monico, 396 Mass. 793, 803-805, 488 N.E.2d 1168 (1986) (error to exclude opinion of psychologist on criminal responsibility of a criminal defendant); Andrade v. Correia, 358 Mass. 786, 788, 267 N.E.2d 503 (1971) (allowing chiropractor to give expert testimony "within the scope of his experience and the limited scope of the permissible practice of a chiropractor").

Malovany's expert testimony was particularly appropriate here, since his expertise was in the very field at issue. The defendant's allegedly negligent treatment was orthodontic in nature. In such circumstances, it was error to exclude Malovany's opinion regarding the appropriate standard of care on the ground that he has a different specialty from that of the defendant. His training and experience as an orthodontist, rather than a pedodontist, goes to the weight accorded his testimony but not to its admissibility. See Commonwealth v. Schulze, 389 Mass. 735, 740, 452 N.E.2d 216 (1983) (permitting general practitioner to testify, based on personal observation, to defendant's mental condition, and noting that "[t]he extent of his training and experience would bear only on the weight that should be given to his testimony").

Although the defendant now claims that familiarity with the standard of care in the Commonwealth is required in medical malpractice cases, ⁴ this issue is not before the court. The defendant made no objection on this ground at trial. ⁵ Thus, the record is bereft of any showing regarding Malovany's knowledge of Massachusetts standards of care for orthodontic treatment. The issue is one properly for the trial judge's determination on retrial.

offer of proof. The defendant argues that, regardless of the admissibility of Malovany's excluded testimony, the plaintiff is barred on appeal from raising the issue because of a failure to make an offer of proof. See Mass.R.Civ.P. 43(e), 365 Mass. 806 (1974). While an offer of proof is preferred, it has not been required in circumstances where, as here, a judge has excluded completely all of a witness's testimony on a particular issue. "No offer of proof, of the evidence expected in answer to a question asked on direct examination, has been required in certain cases where the trial judge in effect has treated the witness as not qualified to testify at all on a particular issue or has prevented all testimony on that issue." Ford v. Worcester, 339 Mass. 657, 659, 162 N.E.2d 264 (1959). Accord Ratner v. Canadian Universal Ins. Co., 359 Mass. 375, 385, 269 N.E.2d 227 (1971) ("an offer of proof has not always been required where the trial judge has prevented all testimony on a particular issue").

While the better practice would have been to make an offer of proof regarding Malovany's expected testimony, the judge's statements and his actions in sustaining the several defense objections made it clear that he would have excluded the witness's substantive testimony on an appropriate standard of care on the erroneous ground of lack of specialization. It is inherent in medical malpractice cases that the plaintiff's expert, when questioned about the appropriate standard of care, will testify favorably to the plaintiff. That is the reason for his testimony. The purpose of an offer of proof is to show an appellate court that the proponent had been prejudiced by the exclusion of offered evidence. Holmgren v. LaLiberte, 4 Mass.App.Ct. 820, 349 N.E.2d 379 (1976). P.J. Liacos, Massachusetts Evidence 78 (5th ed. 1981 & Supp.1985). Where the content of the excluded evidence is apparent, the strict necessity for an offer of proof...