Primus v. Galgano, 02-1419.

• Decision Date: 21 May 2003
• Docket Number: No. 02-1419.,02-1419.
• Citation: 329 F.3d 236
• Parties: Sharon PRIMUS, Plaintiff, Appellee, v. Richard C. GALGANO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

329 F.3d 236

Sharon PRIMUS, Plaintiff, Appellee, v. Richard C. GALGANO, Defendant, Appellant.

No. 02-1419.

United States Court of Appeals, First Circuit.

Heard April 9, 2003.

Decided May 21, 2003.

Appeal from the United States District Court for the District of Massachusetts, Richard G. Stearns, J.

COPYRIGHT MATERIAL OMITTED

Robert F. Oberkoetter, with whom Rosario M.F. Rizzo was on brief, for appellee.

Wilson D. Rogers III, with whom Wilson D. Rogers, Jr., Mark C. Rogers, Lori M. Nehls, and The Rogers Law Firm P.C. were on brief, for appellant.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

A jury returned a verdict of $1,460,000 against Dr. Richard Galgano for medical malpractice in his 1993 treatment of Sharon Primus, who was later diagnosed with breast cancer in 1995. On appeal, the doctor raises two issues. He argues the evidence was insufficient to show his failure to meet the appropriate standards of care and causation. He also argues the district court committed error in failing to instruct the jury under Mass. Gen. Laws Ann. ch. 231, § 60H (West 2003) and that the verdict should be reduced to the $500,000 cap under that statute. We affirm. In doing so, we hold, in an issue of first impression, that a defendant must request an instruction under Mass. Gen. Laws Ann. ch. 231, § 60H and waives his claim if he does not do so.

I.

Sharon Primus, whose husband is in the military, saw a number of physicians at Luke Air Force Base in Arizona between 1989 and 1992 regarding a cyst (or cysts) in her breast.

On October 18, 1989, Primus saw Dr. Susan Allen, a specialist in family medicine at Luke Air Force Base, for a routine annual examination. Dr. Allen palpated a 2 millimeter lump in Primus's breast. According to Primus's medical records, the lump was located in her left breast; Primus, however, maintains that this is a mistake and that the lump was in her right breast. Dr. Allen ordered a mammogram be performed on Primus the next day. Dr. Allen also referred Primus to Dr. Lawrence Riddles, a surgeon at Luke Air Force Base; Dr. Allen noted in Primus's record that she should be evaluated by a surgeon, and a biopsy should perhaps be performed. Dr. Riddles saw Primus on November 1, 1989. Based on his examination and the mammogram ordered by Dr Allen, he concluded that there was no evidence of cancer. Dr. Riddles also recommended that Primus return for a follow-up visit in three months' time; Primus did not see Dr. Riddles again, however. Primus did see Dr. Allen in November 1990. At that time, Dr. Allen found no mass in Primus's breast. No biopsy was performed despite Dr. Allen's query.

On July 19, 1991, Primus saw another surgeon at Luke Air Force Base, Dr. Earl Walker. This time, Primus went directly to a surgeon, rather than being referred by a general practitioner. According to Dr. Walker's notes, Primus complained of a month-old cyst in her right breast. Palpation revealed a 4 millimeter cyst in her right breast. Dr. Walker made a preliminary diagnosis of fibrocystic disease, and ordered a mammogram. The mammogram was performed on July 25, 1991, and Primus saw Dr. Walker to discuss it on August 8, 1991. Dr. Walker again diagnosed the lump as fibrocystic disease, noting that it was a 6 millimeter smooth lump. Primus saw Dr. Walker for a third time in January 1992. He noted a 4 to 6 millimeter lump, palpated her lymph nodes, and recommended that she come back in July 1992 for another mammogram. Primus did not have a third mammogram while at Luke Air Force Base.

Primus also saw Dr. Allen for another annual physical examination on December 18, 1991, and complained of a cyst in her right breast. Dr. Allen noted that Primus should follow up with a surgeon, and perhaps a needle aspiration or surgical biopsy could be performed. Again, no biopsy or needle aspiration was performed, nor were such diagnostic procedures ever performed while Primus was in Arizona. Primus also saw a nurse at Luke Air Force Base, Diane Musselwhite, in June 1992. Nurse Musselwhite noted that Primus had a 10 millimeter lump in her breast.¹

Primus left Arizona in July 1992, and relocated with her family to Massachusetts when her husband was transferred to Hanscom Air Force Base. She became pregnant in August 1992. During Primus's pregnancy, changes in her breast were attributed to normal effects of pregnancy. Primus saw Dr. Martin Gross, an obstetrician, on October 15, 1992. At that time, a hardened area was detected in Primus's right breast. In November 1992, Primus saw Dr. Michael Shaw, a hematologist/oncologist, who recorded that Primus had "normal pregnant breasts." Dr. Gross also did an evaluation of Primus's breasts when he delivered her child in April 1993, and found no mass in her breast.

On October 12, 1993, after the birth of Primus's son, Primus saw Dr. Richard Galgano, a private primary-care physician who saw patients from Hanscom Air Force Base, for a complete medical examination. Galgano palpated a lump and noted in her record a cyst in the outer portion of her right breast. Primus told Galgano that a lump in that breast had been diagnosed as non-cancerous by doctors in Arizona after a 1991 mammogram. She also told him it had not changed in size since then, and that it was not painful. Though he palpated the lump, Galgano did not refer her to a surgeon, nor did he obtain her medical records or perform a work-up.

Primus was diagnosed with breast cancer in 1995. On March 14, 1995, she consulted a general practitioner, Dr. Daniel Melville, who, after palpating a lump in her right breast, immediately arranged for both a mammogram and an ultrasound. Primus had a mammogram, but the ultrasound was not performed at the recommendation of the radiologist, who felt that the mammogram alone clearly indicated the presence of cancer. Dr. Melville called Primus at home the evening of the day she had her mammogram to tell her she needed to see a surgeon as soon as possible. Primus saw the surgeon, Dr. Kevin O'Donnell, the next day, March 29, 1995. Dr. O'Donnell diagnosed breast cancer on the basis of the mammogram and palpation of the lump. He ordered a biopsy on April 11, 1995 to confirm his diagnosis, and then scheduled surgery for Primus shortly thereafter. By that time, the cancer had metastasized into four lymph nodes. The lump was estimated to be 40 millimeters in size, but the final pathology report recorded it as 25 millimeters. She underwent a radical mastectomy on May 12, 1995 that entailed removal of her entire breast and 21 lymph nodes and began chemotherapy in June 1995. After the mastectomy, breast reconstruction was attempted unsuccessfully. At trial, Primus and her husband testified about the pain, suffering, and embarrassment which had resulted from the loss of her right breast, the chemotherapy, and the failed reconstructive surgery.

II.

On March 27, 1998 Primus filed a medical malpractice action in the U.S. District Court in Massachusetts. It was consolidated for the purpose of discovery and trial with another case arising out of overlapping facts, which had originally been filed in U.S. District Court in Arizona in July 1998. Primus v. United States, C.A. No. 99-10151-RGS. The Arizona case alleged a cause of action against the United States for medical negligence by Dr. Walker under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 (2000). Because FTCA claims are heard by a judge rather than a jury, see 28 U.S.C. § 2402, the instant case was tried to a jury, while the case against the United States was tried by the district court. For this reason, some evidence was presented to the judge out of the presence of the jury. The district court instructed the jury that it was only to consider the claims against Dr. Galgano, not those against Dr. Walker. The FTCA case was governed by Arizona law, while the instant case was tried under Massachusetts law.

The defendant filed a motion for Judgment as a Matter of Law, Fed.R.Civ.P. 50(a), at the close of plaintiff's case, and renewed the motion at the close of all the evidence. Both motions were denied. The jury returned a verdict for the plaintiff consisting of $500,000 for damages suffered as a result of negligence, and $960,000 for future pain and suffering. Defendant then filed a motion for entry of judgment, styling it as being in accordance with Mass. Gen. Laws Ann. ch. 231, § 60H, and requesting that the district court reduce the verdict to $500,000 as an operation of law. Defendant also filed a motion for judgment in accordance with Fed. R.Civ.P. 50(b), arguing that plaintiff had failed to present evidence demonstrating deviation from the accepted 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 demonstrating deviation from the accepted standard of care and a causal relationship between that deviation and plaintiff's injury and that the verdict must be reduced to $500,000 as an operation of law.

III. Sufficiency of the Evidence

Dr. Galgano argues Primus did not produce expert evidence that he deviated from the expected standard of care or that the alleged deviation was causally related to any injury, including a diminished chance of survival or longer life. To prevail on a negligence claim under Massachusetts law, "a plaintiff must show by a preponderance of the evidence `(1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; (3) proximate or legal cause; and (4) actual damage or injury.'" Heinrich v. Sweet, 308 F.3d 48, 62-63 (1st Cir.2002) (quoting Jorgensen v. Mass. Port Auth., 905 F.2d 515, 522 (1st Cir.1990)).

Under Massachusetts law, the rule in medical malpractice cases against physicians is:

[W]hether the physician, if a general practitioner, has...