Liakos v. Moreno

• Citation: 351 Mass. 90,217 N.E.2d 764
• Parties: Angelo LIAKOS v. Anthony MORENO.
• Decision Date: 08 June 1966
• Court: United States State Supreme Judicial Court of Massachusetts

Page 764

217 N.E.2d 764

351 Mass. 90

Angelo LIAKOS v. Anthony MORENO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1966.

Decided June 8, 1966.

Joseph J. Hurley, Boston, for plaintiff.

Frank P. Hurley, Boston, for defendant.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, KIRK, and REARDON, JJ.

SPALDING, Justice.

In this action of tort the plaintiff, a minor, seeks to recover for pre-natal injuries alleged to have been caused when his mother, eighteen days before his birth, was struck by an automobile driven by the defendant. The case was tried to an auditor, who found for the defendant. Thereafter it was tried to a jury on the auditor's report and other evidence, and the jury also found for the defendant. The sole exception arises out of a portion of the judge's charge, and it arose in these circumstances.

The plaintiff's mother testified that 'she suffered vaginal bleeding after the accident up to the time of the delivery of the plaintiff, slightly less than three weeks later.' The plaintiff was born 'a cerebral palsy baby.' The medical evidence connecting the cerebral palsy with the accident came mainly from two doctors called by the plaintiff. Dr. Eugene N. Binder, who saw the plaintiff's mother a few days after the plaintiff's birth, testified that his opinion that there was a causal connection between the accident and the plaintiff's condition was based on a history obtained from the mother. She told him that there was no vaginal bleeding before the accident, that the bleeding developed immediately after sustaining a blow in the abdomen at the time of the accident, and that it continued until the plaintiff was born. This, he said, would indicate a separation of the placenta, which would reduce the oxygen supply to the brain of the foetus. In response to questions by the judge, Dr. Binder stated that this vaginal bleeding was the 'main factor' on which his opinion was based. He later testified that the injury to the plaintiff's mother unaccompanied by vaginal bleeding would be sufficient to produce cerebral anoxia (lack of oxygen in the brain), a cause of cerebral palsy, and that he was of opinion that a causal relationship existed 'between the accident and the birth of this cerebral palsy child,' even in the absence of vaginal bleeding.

Dr. Louis Burke, an obstetrician called by the plaintiff, testified solely on the basis of hypothetical questions; he had never seen or treated the plaintiff's mother. He testified that vaginal bleeding following the accident would be of 'extreme significance.' But he also testified that the pain in the abdomen described by the plaintiff's mother was one of the prime symptoms of separation of the placenta, and that such a separation could occur without bleeding. Later, in response to a question by the judge, he stated that if vaginal bleeding was not present following the accident his opinion 'relative to separation of the placenta * * * would be very untenable.'

The plaintiff's mother was taken to the Boston City Hospital immediately after the accident and remained there three days. She ree ntered the hospital about two weeks later for the birth of the plaintiff. With respect to the first visit the hospital record makes no mention of vaginal bleeding. As to the second visit there is an entry in the record that there was no bleeding.

The relevant portions of the charge are as follows: '(i)t is the assertion of Mrs. Liakos that she started to bleed vaginally at the scene of the accident; that when she came into the hospital she was bleeding; * * * that she continued to bleed throughout her stay at the hospital; and that when she returned for the birth of the child * * * she continued to bleed. * * * In connection with * * * (the testimony of Doctors Binder and Burke with respect to the separation of the placenta) it is for you to consider their testimony as to the importance that they laid upon the aspect of the vaginal bleeding, and it is for you to say whether their opinions which they expressed resulted from their taking as true the testimony given by Mrs. Liakos * * * relative to the immediate onset and the continuance of the vaginal bleeding. * * * Let us assume that you come to the conclusion that notwithstanding the statute...