Primus v. Galgano, CIV.A. 9810549RGS.
| Decision Date | 08 March 2002 |
| Docket Number | No. CIV.A. 9810549RGS.,CIV.A. 9810549RGS. |
| Citation | 187 F.Supp.2d 1 |
| Parties | Sharon A. PRIMUS v. Richard C. GALGANO, and Brighton Marine Health Center, Inc. |
| Court | U.S. District Court — District of Massachusetts |
Rosario M.F. Rizzo, Concord, MA, Robert F. Oberkoetter, South Dartmouth, MA, for Plaintiffs.
Wilson D. Rogers, Wilson D. Rogers, Wilson D. Rogers, III, Wilson D. Rogers, Jr., PC, Boston, MA, Mary Elizabeth Carmody, United States Attorney's Office, Donohue Federal Building and Courthouse, Worcester, MA, for Defendants.
MEMORANDUM AND ORDER ON DEFENDANT RICHARD GALGANO'S MOTION FOR ENTRY OF JUDGMENT IN ACCORDANCE WITH M.G.L. c. 231, § 60H [Docket # 61]
In this medical malpractice case alleging a failure to diagnose breast cancer, the jury awarded plaintiff Sharon Primus $1,460,000 in compensatory damages, consisting of a $500,000 award for past pain and suffering and a $960,000 award for future pain and suffering. The defendant, Dr. Richard Galgano, now moves that the award be reduced to $500,000, to conform to the cap on pain and suffering damages imposed by M.G.L. c. 231, § 60H.
In 1986, alarmed by the spiraling costs of medical malpractice insurance, the Massachusetts Legislature enacted several laws limiting recoveries by malpractice plaintiffs. Among them was section 60H. It reads in relevant part:
In any action for malpractice, negligence, error, omission, mistake or the unauthorized rendering of professional services, other than actions brought under section two of chapter two hundred and twenty-nine, against a provider of health care, the court shall instruct the jury that in the event they find the defendant liable, they shall not award the plaintiff more than five hundred thousand dollars for pain and suffering, loss of companionship, embarrassment and other items of general damages unless the jury determines that there is a substantial or permanent loss of impairment of a bodily function or substantial disfigurement, or other special circumstances in the case which warrant a finding that imposition of such a limitation would deprive the plaintiff of just compensation for the injuries sustained.
In this case, the only damages sought by plaintiff were for pain and suffering. The court did not, however, instruct the jury regarding the section 60H "cap" on damages, nor did the court require that the jury find permanent disablement, substantial disfigurement or special circumstances as a precondition to an award in excess of $500,000.
Prior to final argument, the court provided counsel with draft copies of the proposed verdict slip and jury instructions. In the ensuing discussion, plaintiff's counsel asked for changes in the wording of question 1 (involving the duty of care), which the court accommodated.1 Defendant's counsel objected to the segregation of damages into past and future amounts as "prejudicial." The court disagreed and pointed out that the verdict slip had been structured in this regard to conform with the requirements of section 60H. The court also reminded counsel of the $500,000 statutory cap and the fact that it had received no request for instructions or findings on the issue.2 Defendant's counsel offered no response and moved on to "housekeeping matters."
Subsequent to the verdict, defendant moved for the entry of judgment "in accordance" with section 60H, requesting that the court reduce the verdict by $960,000. Defendant argues that while he did not request a section 60H instruction, the statutory limitation on damages is "an operation of law and was not waived by the defendant."
I disagree for three reasons. The limitation was enacted to benefit defendants in medical malpractice actions. See Note, The Constitutionality of the Massachusetts Medical Malpractice Pain and Suffering Cap, 29 B.C. L.Rev. 659 (1988) (). Thus, it seems appropriate that the burden of requesting an instruction be placed on the defendant. Here, no request was made despite the court's reminder to counsel.
Second, I agree with the substance of the affidavits filed on plaintiff's behalf by Michael E. Mone, Esq., and Elizabeth N. Mulvey, Esq., both of whom I know to be lawyers experienced in the trial of medical malpractice actions. Attorney Mone states in his affidavit:
Since the enactment of 231, Section 60(H), I have tried many malpractice cases in which the $500,000 cap might have been applicable. In...
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...a judgment for the full amount of the jury's verdict without a reduction due to plaintiff's negligence. See, e.g., Primus v. Galgano, 187 F.Supp.2d 1, 2 (D.Mass.2002) (motion filed by the defendant after jury verdict and prior to final judgment for entry of judgment to reduce medical malpra......
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...JNOV motion was effectively the defendants' first opportunity to object to the manner in which it was applied. Contrast Primus v. Galgano, 187 F.Supp.2d 1 (D.Mass. 2002) (court refused to apply a tort cap after the defendants strategically omitted it from their proposed jury 9. The relevant......
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...standard of care or that that deviation was causally related to plaintiff's injury. Both motions were also denied. Primus v. Galgano, 187 F.Supp.2d 1 (D.Mass.2002). The defendant now appeals these rulings, arguing that the plaintiff failed to introduce expert testimony evidence demonstratin......