Murphy v. Conway

• Decision Date: 10 January 1972
• Parties: Robert M. MURPHY, Administrator, v. James F. CONWAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 681

277 N.E.2d 681

360 Mass. 746

Robert M. MURPHY, Administrator, v. James F. CONWAY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 19, 1971.

Decided Jan. 10, 1972.

Thomas B. Shea, Boston, and Joseph A. Caulfield, South Boston, for plaintiff.

Charles J. Dunn, Boston, for defendant.

Before TAURO, C.J., and CUTTER, REARDON, and BRAUCHER, JJ.

TAURO, Chief Justice.

In an action of tort for medical malpractice, the jury returned a verdict for the defendant on the first count for wrongful death and the trial judge directed a verdict for the defendant on the second count for conscious suffering. The plaintiff's exceptions are to a certain portion of the judge's charge to the jury, ¹ to his order for a directed verdict on count 2, and to the exclusion of certain evidence.

The pertinent evidence is summarized. The decedent was under the care of the defendant during her pregnancy, and approximately forty hours after delivery by Caesarian section, she suffered a cardiac arrest and died on November 15, 1962. According to the autopsy report, the cause of death was 'overwhelming (streptococci) infection,' and the most likely portal of was the peritoneum, a smooth membrane which lines the walls of the abdomen. The plaintiff, husband of the decedent, testified that his wife suffered from a sore throat and fever and was generally in a weak and tired condition on November 8, when she last visited the defendant prior to admission to the hospital. The plaintiff also testified that these symptoms continued, and in addition, his wife developed chills and sweats, from November 8 until her admission on November 12. The defendant denied any knowledge of such symptoms on or before November 12. Hospital records placed in evidence indicated that, on November 12, the decedent had a below normal temperature (ninetyseven degrees) and that, on November 13 prior to delivery, she had a tremor with a cold, clammy skin. The defendant's testimony was that there was nothing in the decedent's condition ascertained from physical examination, from complaints and past history and from hospital charts which reasonably required the defendant to test for the presence of streptococcus infection, nor to administer antibiotics beyond the normal, limited dose ordered for prophylactic reasons after a delivery, nor to delay the Caesarian section.

The plaintiff alleges, in effect, that the failure of the defendant to diagnose and treat the decedent's alleged illness prior to delivering her by Caesarian section constituted negligence which led to her conscious suffering and to her death.

Concerning the instructions to the jury, the plaintiff maintains that it was error for the judge to charge that the evidence was 'not sufficient for the plaintiff to recover' unless the jury believed the plaintiff's testimony to the effect that the defendant had made an admission as to 'improper, unskillful, (and) negligent treatment.' ² There was no error. Even assuming, arguendo, that there was evidence tending to show that the defendant was negligent in not diagnosing and treating the decedent for a sore throat and related symptoms prior to November 13, there was no expert medical evidence on which the jury could have based a finding of a causal connection between this failure and the streptococcus infection which resulted in death. The trial judge accurately stated the law with respect to proof of causal relationships in medical malpractice cases: 'It is the obligation of the plaintiff to show the causal relation . . . between any failure of the doctor and the ensuing death. Those relationships, the causal relationship in most cases of this nature, require some expert medical testimony. . . . (For this reason,) jurors are not entitled and are not permitted to decide vital portions . . . by way of conjecture or surmise or guessing.' See Semerjian v. Stetson, 284 Mass. 510, 515, 187 N.E. 829; Louisell & Williams, Medical Malpractice, § 11.02, and cases cited. Cf. Riggs v. Christie, 342 Mass. 402, 405--407, 173 N.E.2d 610.

In this case, both the defendant and his assistant in the Caesarian operation testified that they saw no indication of peritoneal infection when the decedent was opened up on November 13. It is true that the autopsy report contains the statement, '(I)t is perhaps most plausible to assume that the patient brought the organism with her.' However, as the full text of the autopsy report indicates, the statement was not based on an...