Paiva v. Kaplan

• Decision Date: 28 May 2021
• Docket Number: No. 19-P-1789,19-P-1789
• Citation: 99 Mass.App.Ct. 645,169 N.E.3d 1218
• Parties: Jennifer PAIVA v. Randy KAPLAN.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 645

169 N.E.3d 1218

Jennifer PAIVA¹

v.Randy KAPLAN.

No. 19-P-1789

Appeals Court of Massachusetts, Bristol.

Argued December 11, 2020.

Decided May 28, 2021.

Kathy Jo Cook, for the plaintiff.

J. Peter Kelley, Burlington, for the defendant.

Present: Vuono, Milkey, & Ditkoff, JJ.

DITKOFF, J.

The plaintiff, Jennifer Paiva, in her individual capacity and as parent and next friend of Noah and Chad Paiva, appeals from a judgment for the defendant, Dr. Randy Kaplan, following a jury trial. The primary issue on appeal is whether the trial judge erred in giving an "errors of judgment" instruction that informs a jury in a medical malpractice case that an error of judgment by a doctor is not negligent if the doctor's decision was within the standard of care. Put another way, such an instruction informs a jury that a doctor faced with multiple treatment options, all within the standard of care, is not liable for negligence if the doctor chooses an option that leads to an adverse outcome. Concluding that such an instruction correctly reflects Massachusetts law, and that the plaintiff's remaining challenges to the specific wording of the instruction have been waived, we affirm.

1. Background.² a. Paiva's care and treatment. This medical malpractice case arose in connection with the care and treatment of Jennifer Paiva at Charlton Memorial Hospital by Dr. Kaplan. On August 16, 2013, just before 1 A.M. , Paiva presented at the emergency room with sudden onset abdominal pain, which began about an hour before she arrived. Paiva had a history of gastric bypass surgery

and a hernia repair, and had had her gall bladder removed two weeks earlier. Ultimately, her symptoms, including nausea, vomiting, diarrhea, and severe abdominal pain, led Dr. Kaplan to believe that there might be an issue of bowel ischemia (or a blockage of blood to the intestines). Minutes after she arrived, Paiva reported her pain to be at a ten out of ten.

Shortly after 1 A.M. , Dr. Kaplan ordered an abdominal and pelvic computed tomography

(CT) scan with contrast in an effort to determine the cause of the pain. At 2:42 A.M. , Paiva reported that her pain had decreased to a six out of ten, and she was taken for the CT scan at approximately 3 A.M. Paiva returned from her CT scan at 3:55 A.M. The report from the CT scan indicated that findings were "worrisome for ischemic bowel," and possibly small bowel obstruction.

After Dr. Kaplan had a discussion with the bariatric surgeon at Tobey Hospital, an order was entered to transfer the patient by ambulance for surgery at 4:23 A.M. At 4:50 A.M. , when she was reassessed by the nurse, she again reported her pain as a ten out of ten. The ambulance arrived at Tobey Hospital at 5:30 A.M. At 6:30 A.M. , Paiva was in surgery.

The surgeon determined that Paiva, in fact, did suffer from an ischemic bowel, which was caused by a hernia

. The surgeon removed twenty-five inches of small bowel. Paiva asserts that she suffers severe and permanent disabilities as a result of this episode.

The main dispute at trial was whether Dr. Kaplan acted within the standard of care by ordering the CT scan

and waiting for the results, or whether he instead should have contacted a surgeon earlier.

b. The plaintiff's motion in limine and the jury instructions. Prior to trial, Paiva filed a motion in limine "to preclude evidence or testimony of the defendant ... having exercised his ‘judgment’ in the care and treatment of [Paiva]." In addition to the request that no references be made to Dr. Kaplan's exercising his "best judgment, professional judgment, reasonable judgment, etc.," Paiva moved to exclude "any jury instruction to the effect that a defendant physician is ‘allowed a wide range in the reasonable exercise of his or her professional judgment.’ " Dr. Kaplan opposed this motion, citing the jury instruction recommended in § 4.3.2 of the Massachusetts Superior Court Civil Practice Jury Instructions (Mass. Cont. Legal Educ. 3d ed., 2d supp. 2018). The judge deferred ruling on the motion until the charge conference. At the charge conference, the judge stated that she "put in the model instruction that includes discussing the judgment of a physician."

The jury instruction that the judge ultimately gave on the standard of care tracked the instruction in § 4.3.2 of the Massachusetts Superior Court Civil Practice Jury Instructions, supra. The judge stated that Dr. Kaplan was required "to exercise the degree of skill and care of the average physician practicing in the defendant's area of specialty, which is emergency medicine." After explaining this concept in more detail, the judge stated the following:

"All right, ladies and gentlem[e]n, part of the standard of care is that the physician will use his or her judgment in accordance with accepted medical practice for a physician in the same area of specialty.

"If, in retrospect, the physician's judgment was incorrect, it is not, in and of itself, enough to prove medical malpractice or negligence.

"Doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as that judgment does not represent a departure from the standard of care resulting in a failure to do something that the standard of care requires or in doing something that should not be done under the standard of care.

"In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the standard of care.

...

"Evidence that a doctor who testified in this case or any other doctor might or would have undertaken a different course of treatment is not in itself evidence that the defendant's treatment was negligent because doctors are entitled to a range of medical judgment that falls within the standard of care."

After the judge gave her instructions Paiva objected "on the issue of the standard of care specifically and the question of the doctor's judgment.... We would just rely on the reasons set forth in our motion in limine." The jury were also given a written copy of the jury instructions for use during their deliberations.

c. The jury question. After about three hours of deliberations, the jury sent a question to the judge, asking if they could have "a further explanation on the paragraph regarding professional judgment," which corresponds to the first three paragraphs of the block quotation supra. Paiva again objected to "any instruction regarding a doctor's individual judgment and request[ed] that the instruction be given as provided in [Paiva's] motion in limine which set[ ] forth purely objective standards for the jury's consideration."³ Further, her counsel stated, "[T]he appropriate explanation would be ... to restate the paragraph and explain to the jury that a doctor, when exercising judgment, must comply with the standard of care. If ... their judgment violates the standard of care, ... they may be held liable."⁴

The judge brought the jury back into the court room, and reread the entire instruction on the standard of care that she had previously given, without further explanation. When the jury returned to deliberations, Paiva restated her objection to "the judgment instruction" and requested "the instruction that was in our motion in limine." About twelve minutes later, the jury returned with a verdict for the defendant.

2. Standard of review. "The trial judge has wide discretion in framing the language used in jury instructions." Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 441, 13 N.E.3d 615 (2014). "An appellate court considers the adequacy of the instructions as a whole, not by fragments."

Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547, 5 N.E.3d 923 (2014). "An error in jury instructions is not grounds for setting aside a verdict unless the error was prejudicial -- that is, unless the result might have differed absent the error." Patriot Power, LLC v. New Rounder, LLC, 91 Mass. App. Ct. 175, 181, 73 N.E.3d 312 (2017), quoting Blackstone v. Cashman, 448 Mass. 255, 270, 860 N.E.2d 7 (2007). The burden is on the plaintiffs to make a "plausible showing that the trier of fact might have reached a different result," absent any erroneous instruction. Campbell v. Cape & Islands Healthcare Servs., Inc., 81 Mass. App. Ct. 252, 258, 961 N.E.2d 1096 (2012), quoting Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275, 557 N.E.2d 1136 (1990).

3. The "errors of judgment" instruction. In a medical malpractice action, "[o]ne holding himself out as a specialist should be held to the standard of care and skill of the average member of the profession practi[c]ing the specialty, taking into account the advances in the profession." Brune v. Belinkoff, 354 Mass. 102, 109, 235 N.E.2d 793 (1968). "Because the standard of care is based on the care that the average qualified physician would provide in similar circumstances, the actions that a particular physician, no matter how skilled, would have taken are not determinative." Palandjian v. Foster, 446 Mass. 100, 104-105, 842 N.E.2d 916 (2006). As the basis for the standard of care rests on the average qualified physician, or specialist, "this standard does not require physicians to provide the best care possible," id. at 105, 842 N.E.2d 916, or to guarantee a good outcome. See Schwartz v. Goldstein, 400 Mass. 152, 155, 508 N.E.2d 97 (1987).

In Riggs v. Christie, 342 Mass. 402, 405-406, 173 N.E.2d 610 (1961), the Supreme Judicial Court held that "the undertaking of a physician as implied by law is that he possesses and will use the reasonable degree of learning, skill and experience which is ordinarily possessed by others of his profession in the community where he practi[c]es ... and that he will in cases of doubt use his best judgment as to the treatment to be given in order to produce a good result." There, the court concluded that the physician's decision not to visit the plaintiff on either the date of discharge or the following day was "a question of professional judgment to be...