Renzi v. Paredes

• Decision Date: 23 July 2008
• Docket Number: SJC-10051.
• Citation: 890 N.E.2d 806,452 Mass. 38
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Anthony RENZI, administrator,<SMALL><SUP>1</SUP></SMALL> v. Santiago PAREDES & another.<SMALL><SUP>2</SUP></SMALL>

890 N.E.2d 806

452 Mass. 38

Anthony RENZI, administrator,¹ v. Santiago PAREDES & another.²

SJC-10051.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 4, 2008.

Decided July 23, 2008.

Tory A. Weigand, Boston (Peter C. Knight & William J. Davenport with him) for the defendants.

Annette M. Gonthier Kiely, Salem (Maura L. Sheehan with her) for the plaintiff.

John J. Barter, Boston, for Professional Liability Foundation, amicus curiae, submitted a brief.

Paul F. Leavis, Boston, Michael J. Harris, & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

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

MARSHALL, C.J.

Today we recognize loss of chance of survival³ as a theory of injury in a wrongful death action predicated on medical negligence, where the decedent's chances of survival were less than even prior to the physician's negligence. See Matsuyama v. Birnbaum, 452 Mass. 1, 3, 890 N.E.2d 819 (2008) (Matsuyama). See also G.L. c. 229, § 2. In this case, we principally consider whether loss of chance damages are recoverable where the physicians' negligence reduced the decedent's chances of survival from a better than even chance to one less than even, and where the jury found the defendant physicians not liable for causing the decedent's wrongful death. We conclude that the rationale for adopting the loss of chance doctrine is no less compelling here, where the physician's negligence reduced a better than even chance of survival to a less than even chance, than it was in Matsuyama, where the decedent's prenegligence chance of survival was never better than even. However, because of errors in the special verdict questions, which we describe below, we are constrained to remand this case for a new trial, limited to the issue of damages. On all other matters appealed by the defendants, we affirm.

1. Background. The jury could have found as follows: In 1993, Mary Jane Renzi was a forty-eight year old tenured teacher in the Saugus public school system. She was married and a mother of two children, for one of whom, a daughter who was profoundly deaf and had mobility impairments, she was the principal advocate and caretaker. In December, 1993, Renzi saw Dr. Lavonne Veatch, an internal medicine physician, for an annual physical examination. Veatch's notes of the examination described both of Renzi's breasts as "multinodular." Those notes also included a drawing of Renzi's breasts, on which the physician placed a black dot on the left breast, and a smaller dot on the right breast. Veatch ordered no further testing or examination of Renzi's breasts, although, as she testified, she was aware at that time that the highest percentage of "malignant regions" in right-handed women such as Renzi was in the area noted on Renzi's left breast. Renzi's routine screening mammogram in January, 1994, was read as normal.⁴

In December, 1994, Renzi returned to Veatch's office, where she was diagnosed with hidradenitis (inflammation of sweat glands in the armpit) and prescribed a course of antibiotic treatment. Veatch's records show no breast examination during that visit.

In January, 1995, Dr. Santiago Paredes, a radiologist, performed a mammogram on Renzi. On Paredes's "radiologic consultation" form was the handwritten note "Consult." The report documented that Renzi reported feeling a lump in her breast, and that Veatch's office had reported a clinical history of "large [increase] in [left breast] tissue at 12:00." Paredes performed a routine screening mammogram, and not a diagnostic mammogram, which would have focused on the areas indicated as problematic. He compared the mammogram to the mammogram performed in 1994. His report, which he forwarded to Veatch, read: "No changes are observed when compared with study done one year ago. No suspicious lesions observed in either breast." Veatch took no action in response to the report.

In July and August, 1995, Veatch continued to treat Renzi for hidradenitis in her left armpit, but noted a continued tenderness in Renzi's left breast, which the physician characterized in her August notes as "worrisome." That month, Veatch ordered a diagnostic mammogram. After a needle biopsy, Renzi was diagnosed with stage 3B inflammatory breast cancer (IBC) (infiltrating ductal carcinoma with lymph node involvement), with a ten-centimeter mass in her left breast. She underwent chemotherapy, bone marrow transplant, radical mastectomy, radiation, and hormone therapy. Despite this treatment she developed further metastatic disease in the bone and brain. Renzi died at age fifty-four in November, 1999, of metastatic breast cancer.

This action was brought by Renzi's husband, Anthony Renzi, as administrator of her estate (plaintiff), on his amended complaint against Veatch, Paredes, and Associated Radiologists of Boston, Inc. (Associated Radiologists), jointly and severally, for wrongful death, conscious pain and suffering, and gross negligence. A jury trial commenced in March, 2005. Both parties called a number of expert witnesses. Here we summarize only the expert testimony germane to this appeal.

Dr. Yolanda Adler, a radiologist, testified for the plaintiff that Paredes deviated from the standard of care by, among other things, not referring to Renzi's clinical history when he read her mammogram, conducting a screening rather than a diagnostic mammogram, failing to notice an "obvious spectacular change" from the 1994 to 1995 mammogram films, and mischaracterizing the 1995 mammogram as "normal." She further opined that, had an ultrasound been ordered in January, 1995, as medically indicated, it would likely have been positive and led to a biopsy revealing the cancer.

Another plaintiff's expert, Dr. John Glick, an oncologist, testified that Veatch deviated from the standard of care by failing to follow up within six months of the initial December, 1993, examination on the nodule on Renzi's left breast that she had described as "dominant" and noted in her own records; by failing to conduct an adequate physical examination or breast examination in December, 1994; and in January, 1995, by failing to contact the patient and order further tests in response to Paredes's radiology report indicating that Renzi felt a lump in her left breast.

Glick also told the jury that the "prognosis of breast cancer is very complex" and that it is characterized by a system of "staging," or grading, the severity of the cancer to determine the appropriate treatment. See Matsuyama, supra at 9, 890 N.E.2d 826. He testified that the lower the stage at diagnosis, the higher the chances of survival, and opined that Renzi's cancer was "diagnosable" in December, 1993, and June, 1994. Had the cancer been detected at that time, he testified, Renzi "would be alive and with her family today." He testified to a reasonable degree of medical certainty that, had Renzi's cancer been detected in June, 1994, it would have been either stage 1 or stage 2A breast cancer, and that if the cancer had been stage 1, Renzi's chance of "ten year disease free survival" would have been 88% to 90%; if the cancer had been stage 2A, her ten-year survival rate would have been 73%.⁵ Had the cancer been diagnosed in January, 1995, he stated, Renzi's cancer would have been either stage 2B or stage 3A, which would have given Renzi a 58% chance of ten-year survival. He also told the jury that in August, 1995, when Renzi's cancer actually was detected, she was stage 3B, with a 30% chance of ten-year survival, a decrease of twenty-eight percentage points.

For the defense, Dr. Ferris M. Hall, a specialist in radiology and internal medicine, testified that Paredes did not commit a breach of the standard of care with regard to his conduct and interpretation of the January, 1995, mammogram. Dr. Michael Stone, a surgical oncologist, also testified for the defense. He opined that Renzi's cancer was of such sudden and virulent nature that no harm or loss of survival could be attributed to Paredes's actions.⁶ He testified that Renzi's particular type of breast cancer was of such "very bad biology" that "by the time we see it and make the diagnosis, it's already exploded throughout the breast."⁷ Even had it been detected in January, 1995, Stone told the jury, Renzi's cancer would have been "the worst category of stage 3A breast cancer which has an annual mortality rate of 20%," or essentially the same survival rate of Renzi's stage 3B cancer detected in August, 1995.⁸ Over the plaintiff's objection, Stone also averred that, while staging is a predictor for breast cancer, outcome is largely determined by individual factors, including genetics.

The plaintiff's forensic economist was Dr. Allan S. McCausland. He testified as to the value of Renzi's lost income and the value of her services, under the assumption that Renzi's normal life expectancy was eighty-two years and four months, that she would have retired from public school teaching at age sixty-one, and that (based on representations from her husband) she would have taught in a private school until age sixty-five. McCausland derived a net present value of economic loss from Renzi's premature death of $1,019,936.⁹

Prior to the verdict, Veatch settled the plaintiff's case against her for $1.5 million. On special questions, the jury found Veatch not negligent in her treatment of Renzi in June, 1994, but negligent in her treatment in December, 1994, through January, 1995. They found that the negligence was not "a substantial contributing factor in causing" Renzi's death but that it was a "substantial contributing factor in causing [Renzi] the loss of a substantial chance to survive."¹⁰

The jury found Paredes negligent in his reading and reporting of Renzi's 1995 mammogram. They found that Paredes's negligence was not "a substantial contributing factor in causing" Renzi's death, but that it was a "substantial...