Palandjian v. Foster

• Decision Date: 21 February 2006
• Citation: 842 N.E.2d 916,446 Mass. 100
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Peter PALANDJIAN, executor,<SMALL><SUP>1</SUP></SMALL> & another<SMALL><SUP>2</SUP></SMALL> v. Gerald S. FOSTER.

842 N.E.2d 916

446 Mass. 100

Peter PALANDJIAN, executor,¹ & another² v. Gerald S. FOSTER.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued December 5, 2005.

Decided February 21, 2006.

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Kenneth W. Salinger, Boston (Raymond J. Kenney, Jr., with him) for the defendant.

John B. Flemming, Boston (Joseph P. Musacchio & Camille F. Sarrouf with him) for the plaintiffs.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

SPINA, J.

Following Petros A. Palandjian's (decedent's) death from gastric cancer, his son, as executor of his estate, and his widow filed claims for wrongful death, medical malpractice, and loss of consortium against the decedent's internist, Dr. Gerald S. Foster, and radiologists, Kathleen A. McCarthy and Carol A. Hulka, claiming that they were negligent in failing to diagnose the decedent's cancer at an earlier stage. After trial in the Superior Court, the jury found that none of the physicians had been negligent. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court reversed the judgment in Foster's favor, concluding that the trial judge had erred in excluding certain expert testimony related to the standard of care. Palandjian v. Foster, 63 Mass.App.Ct. 1104, 823 N.E.2d 435 (2005). We granted Foster's application for further appellate review, limited to the issue whether Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994), applies to expert testimony on the standard of care, and we affirm the judgment of the trial court.

1. Background. Dr. Gerald Foster, an internist, served as the decedent's primary care physician from 1979 to 1995. In February, 1991, the decedent visited Foster complaining of severe abdominal pain at night. Foster prescribed Zantac to treat possible peptic ulcers and ordered an upper gastrointestinal series of X-rays (upper GI series) to identify any abnormalities of the stomach or esophagus. Foster also referred the decedent to a cardiologist to determine whether his symptoms were heart related. These tests did not reveal any explanation for the decedent's abdominal pain, which Foster concluded most likely was caused by stress.

The decedent next saw Foster in January, 1993, for a routine physical examination; records do not indicate any reports of abdominal pain at that visit. However, the decedent returned to Foster's office six months later complaining of digestive problems, including foul-smelling belching and the sensation of food sticking in his throat. Foster ordered another upper GI series, which again did not detect any abnormality that could explain these symptoms.

In April, 1994, the decedent visited Foster with similar complaints and severe heartburn. This time, Foster referred the decedent for an endoscopy, which revealed multiple gastric ulcers.³ Biopsies of this tissue were negative, but Foster ordered another endoscopic examination because the ulcers looked suspicious. During the second endoscopy, doctors found a tumor in the decedent's stomach; testing indicated that it was malignant. The decedent underwent surgery to remove the tumor and surrounding lymph nodes, as well as chemotherapy and radiation treatment. The cancer, however, recurred throughout the decedent's abdomen, and he died in 1996.

Following his death, the decedent's widow and son, as executor of his father's estate, filed claims of wrongful death, medical malpractice, and loss of consortium, alleging that Foster was negligent in failing to detect the decedent's gastric cancer sooner. Specifically, the plaintiffs maintained that the decedent's gastric cancer could have been diagnosed and treated at a more curable stage if Foster had ordered an endoscopy in 1991 or 1993, after the inconclusive upper GI series. The plaintiffs also claimed that the radiologists who read the X-rays from the decedent's upper GI series in 1991 and 1993 were negligent in failing to identify any abnormalities.

At the beginning of the trial, Foster, Hulka, and McCarthy (collectively, defendants) filed a motion in limine to exclude any reference to the fact that the decedent's grandmother and aunt had died of gastric cancer, arguing that such information was inadmissible under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Daubert), and Commonwealth v. Lanigan, 419 Mass. 15, 641 N.E.2d 1342 (1994) (Lanigan), because no scientifically reliable evidence established that a family history of gastric cancer in second degree relatives created a greater risk that a patient would develop gastric cancer himself.⁴ The trial judge initially ruled that the plaintiffs could refer to the decedent's family history in their opening, but they could not argue that this family history actually increased the decedent's risk of cancer.

At trial, the plaintiffs sought to establish the standard of care through an expert, who testified that Foster had deviated from the standard of care by not ordering an endoscopy in 1991 or 1993.⁵ The expert explained that he would have ordered an endoscopy earlier because the results of the upper GI series did not reveal the cause of the decedent's persistent pain. The expert also testified that an endoscopic examination in 1991 or 1993 would have revealed the presence of stomach cancer.

On redirect examination, counsel for the plaintiffs asked the expert about the significance of the decedent's family history of gastric cancer. The defendants' objection to this line of inquiry as beyond the scope of cross-examination was sustained. The plaintiffs later made an offer of proof that the expert, if permitted to testify, "would have opined that the fact that [the decedent's] grandmother [and paternal aunt] had died of gastric cancer was a factor that should have given the internist a heightened sense of suspicion. . . . [T]o an internist, that family history should have increased the index of suspicion that [the decedent] was at an increased risk for having gastric cancer."⁶ The defendants objected to this testimony, claiming that there was no scientific or medical basis for this assertion and noting that it related back to the issue raised in their motion in limine. When the judge asked the plaintiffs' attorneys for any Daubert-type evidence to support the expert's opinion, counsel cited a study that found an increased risk of gastric cancer in patients with two or more first degree relatives who had the disease. However, the plaintiffs could not provide any data to support the contention that patients with a family history of gastric cancer among second degree relatives faced an increased risk of gastric cancer, and the judge excluded the evidence. The jury ultimately returned verdicts in favor of the defendants, and the plaintiffs appealed.

The Appeals Court affirmed the judgments in favor of the radiologists, but vacated the judgment in favor of Foster, reasoning that the judge erred in excluding the expert's opinion about the decedent's family history of gastric cancer and his increased risk of developing the disease. The Appeals Court concluded that "[t]he proffered expert testimony . . . merely reflects the expert's opinion that the standard of care requires that internists exercise increased caution when dealing with a family history of gastric cancer." Because the opinion related only to the standard of care, it was "not the sort of scientific evidence that must be preliminarily screened for reliability by a judge pursuant to Lanigan." The Appeals Court determined that this testimony was material to the issue of Foster's negligence, and its exclusion constituted reversible error.

2. Standard of review. The decision to exclude expert testimony rests in the broad discretion of the judge and will not be disturbed unless the exercise of that discretion constitutes an abuse of discretion or other error of law. See Commonwealth v. Pike, 430 Mass. 317, 324, 718 N.E.2d 855 (1999). Appellate courts similarly apply an abuse of discretion standard in reviewing the decision of a trial judge to exclude expert testimony as unreliable based on Commonwealth v. Lanigan, supra. Canavan's Case, 432 Mass. 304, 312, 733 N.E.2d 1042 (2000).

3. Discussion. a. Standard of care. To prevail on a claim of medical malpractice, a plaintiff must establish the applicable standard of care and demonstrate both that a defendant physician breached that standard, and that this breach caused the patient's harm. See, e.g., Harlow v. Chin, 405 Mass. 697, 701, 545 N.E.2d 602 (1989). "The proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. . . . [A] specialist should be held to the standard of care and skill of the average member of the profession practising [practicing] 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.⁷ See id. See also Johnson v. Riverdale Anesthesia Assocs., 275 Ga. 240, 241-242, 563 S.E.2d 431 (2002) (because applicable standard of care derived from medical profession generally, "questions aimed at determining how the expert would have personally elected to treat the patient are irrelevant"); 5 D.W. Louisell & H. Williams, Medical Malpractice § 29.01, at 29-7 (2005) ("The standard is measured against what a reasonably prudent practitioner in the defendant's position would do, not what any individual physician or physicians might do"). Commentators agree that this standard does not require physicians to provide the best care possible. See, e.g., W.L. Prosser & W.P. Keeton, Torts § 32, at 187 (5th ed.1984) ("it is...