Pitts v. Wingate at Brighton, Inc.

• Decision Date: 26 July 2012
• Docket Number: No. 11–P–1811.,11–P–1811.
• Citation: 82 Mass.App.Ct. 285,972 N.E.2d 74
• Parties: Theresa PITTS v. WINGATE AT BRIGHTON, INC.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 285

972 N.E.2d 74

Theresa PITTS

v.WINGATE AT BRIGHTON, INC.

No. 11–P–1811.

Appeals Court of Massachusetts, Suffolk.

Argued June 1, 2012.

Decided July 26, 2012.

Stephen J. Lyons, Boston, for the plaintiff.

Barbara Hayes Buell, Boston, for the defendant.

Present: KANTROWITZ, WOLOHOJIAN, & MILKEY, JJ.

MILKEY, J.

The plaintiff sustained two broken bones while she was a patient at Wingate at Brighton, Inc., a nursing home. She brought this malpractice action alleging that her injuries were caused by a nurse's aide negligently allowing her to fall to the ground while transferring her to a wheelchair. On the day that trial was scheduled to begin, the judge held an extensive pretrial colloquy with counsel regarding their expectations as to what the evidence would show. Based on the understanding she gained from that process, the judge concluded that the plaintiff's failure to put forward a qualified expert on causation doomed her case as a matter of law. On this basis, the judge granted a directed verdict to the nursing home after the plaintiff's opening statement.¹ We reverse.

Standard of review. A trial judge can in appropriate circumstances direct a verdict in a defendant's favor after the plaintiff's opening statement. “It is settled, however, that ‘the practice of ordering a verdict on an opening ... is a power which, for obvious reasons, should be exercised with great caution.’ ” Hubert v. Melrose–Wakefield Hosp. Assn., 40 Mass.App.Ct. 172, 176, 661 N.E.2d 1347 (1996), quoting from Upham v. Chateau De Ville Dinner Theatre, Inc., 380 Mass. 350, 351 n. 2, 403 N.E.2d 384 (1980). In any event, “[t]he judge must take the statements and all rational inferences therefrom in the opening as true, and regard them in the light most favorable to the plaintiff. If any reasonable view of the facts and rational inferences supports the plaintiff's claims, the motion must be denied.” Ibid. (citations omitted). See A.C. Vaccaro, Inc. v. Vaccaro, 80 Mass.App.Ct. 635, 641, 955 N.E.2d 299 (2011), quoting from Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass.App.Ct. 812, 827, 927 N.E.2d 480 (2010) (on appeal of directed verdict, reviewing court asks “whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [plaintiff]’ ”). “In instances involving close questions, the safer course is to hear the evidence.” Hubert v. Melrose–Wakefield Hosp. Assn., supra at 176, 661 N.E.2d 1347, quoting from Douglas v. Whittaker, 324 Mass. 398, 400, 86 N.E.2d 916 (1949). “Whether the judge properly directed a verdict is a question of law.” Hubert v. Melrose–Wakefield Hosp. Assn., supra.

Background. The recitation that follows draws on the plaintiff's opening statement, supplemented by the documentary record and concessions the parties made at the pretrial hearing or in their joint pretrial brief. ² As noted, many of the background facts are undisputed. Where there are contested facts, we read those disputes in favor of the plaintiff.

It is undisputed that at the time of the injury, the plaintiff was fifty-three years old, stood five feet, three inches tall and weighed approximately 200 pounds. She suffered from numerous serious medical conditions, including a brain disorder known as leukodystrophy, dementia, seizures, and “profound osteoporosis.” The plaintiff was brought to the nursing home for physical rehabilitation. The goal was that she again be able to ambulate on her own using a walker. According to the nursing home's own evaluation of the plaintiff, that was done upon her arrival, she presented a “potential for falls.” With regard to the level of assistance required for transfers to the bathroom and the like, the nursing home's “care plan” for the plaintiff specifically indicated that an “assist of two” should be employed.

At approximately 2:00 p.m. on October 21, 2001, the plaintiff's daughter went to the nursing home for her second visit of the day. She found her mother sitting on a toilet, where a nursing home employee had brought her some undisclosed time before. The daughter had her mother pull the cord next to the toilet to summon help, and a single nurse's aide responded. The aide informed the daughter that the person who had brought the plaintiff to the bathroom had gone to lunch. Then, outside the daughter's view, the aide sought to assist the plaintiff from the toilet into her wheelchair. The plaintiff fell to the ground, because the aide deviated from the applicable standard of care in at least three respects: trying to do the transfer alone when two aides were required, failing to use a device known as a “gait belt,” and failing to lock the wheels of the wheelchair.³ The aide admitted to the daughter in the immediate aftermath of the incident that the plaintiff “missed the wheelchair and fell on her ‘bum.’ ” Moreover, the nursing home's own records document that the plaintiff “fell while transferring.” ⁴ After the plaintiff fell, the daughter observed her mother “on the floor with her leg bent in front of her and her feet pushed up against the wall ... holding on to the toilet and a bar on the wall so she would not fall further backwards and bang her head.”

With the efforts of a second nursing home employee, the aide was eventually able to get the plaintiff into the wheelchair and back into bed. However, even as she was being wheeled back to her bed, the plaintiff began pointing to her leg and complaining of pain there. She had made no such complaints prior to this time.⁵The nursing home sent the plaintiff to a hospital where she was diagnosed with fractures in the tibia and fibula in the ankle area of her right leg.

The nursing home intended to call Dr. John C. Richmond as an expert witness with regard to the “mechanism” of the plaintiff's injuries, and what sorts of actions might have caused them. Dr. Richmond, a board certified orthopedic surgeon, was expected to testify that, “based on the severe demineralization suffered by [the plaintiff] and the spiral configuration of her right tibial fracture,” the “fracture was pathologic in nature and thus not caused by trauma from a fall to the ground.” He was also expected to testify that the bone breaks likely “resulted from a low velocity twisting motion.”

In light of the plaintiff's osteoporosis and Dr. Richmond's anticipated testimony, the judge concluded that “expert orthopedic testimony” was necessary for the jury to understand when and how the plaintiff broke her bones. Because the plaintiff did not proffer such an expert, the judge granted a directed verdict in the nursing home's favor.

Discussion. A rational view of the plaintiff's evidence is that the plaintiff failed to describe any discomfort prior to her fall in the bathroom and she expressed pain as she was wheeled from the bathroom. The evidence permits a reasonable inference that she was uninjured before going into the bathroom, that the aide negligently caused her to fall to the floor, and that she suffered two broken bones by the time she was returned to her bed. The question presented is whether—without the aid of expert testimony—a jury reasonably could have concluded that the plaintiff's falling to the floor caused her injuries.

Expert testimony is necessary where proof of medical causation lies outside the ken of lay jurors. See Held v. Bail, 28 Mass.App.Ct. 919, 921, 547 N.E.2d 336 (1989) (“if the causation question involves questions of medical science or technology, the jury requires the assistance of expert testimony”). In fact, the medical malpractice case law recognizes that the causal link between the defendant's negligence and the plaintiff's harm “generally must be established by expert testimony.” Harlow v. Chin, 405 Mass. 697, 702, 545 N.E.2d 602 (1989).

However, where a determination of causation lies within “general human knowledge and experience,” expert testimony is not required. Bailey v. Cataldo Ambulance Serv., Inc., 64 Mass.App.Ct. 228, 236 n. 6, 832 N.E.2d 12 (2005), quoting from Lovely'sCase, 336 Mass. 512, 516, 146 N.E.2d 488 (1957). Such is the case here. The plaintiff's fall to the floor was an obvious, commonsense explanation for her injuries. No expert testimony is necessary for lay jurors to appreciate that allowing a nursing home patient to fall to the floor could cause a broken bone. Put differently, jurors could have accepted the plaintiff's commonsense explanation without relying on mere speculation or conjecture. See Ward v. Levy, 27 Mass.App.Ct. 1101, 1102, 534 N.E.2d 308 (1989) (explaining that expert testimony is required where “a jury would not be sufficiently instructed by common knowledge or experience but would be left to conjecture”). While this is not a case where the cause of the plaintiff's injuries was so obvious that it was incontestable,⁶ neither is it one that relied on exotic medical theories that a jury could not understand without expert aid. Compare Weinberg v. Massachusetts Bay Transp. Authy., 348 Mass. 669, 671, 205 N.E.2d 5 (1965) (“Whether a fracture of the ankle could give rise to such consequences, described by the plaintiff, as varicose veins and shortness of breath cannot be said to be a matter of common knowledge”).

In sum, we agree with the plaintiff that the judge erred in dismissing her case, at least at the stage she did. The nursing home could have renewed its motion at the close of the plaintiff's case, at which point the evidentiary issues related to the plaintiff's proof of the timing of her injuries would have been resolved. See note 5, supra. At that time, it would have been significantly clearer whether the plaintiff could prove causation without an expert. See Douglas v. Whittaker, 324 Mass. 398, 399–400, 86 N.E.2d 916 (1949) (“the power to dispose of the case on the opening must be exercised cautiously[, and i]t should not be exercised until it is apparent that ...