Steinhilber v. McCarthy
| Decision Date | 03 November 1998 |
| Docket Number | No. Civ.A. 95-11078-MBB.,Civ.A. 95-11078-MBB. |
| Citation | 26 F.Supp.2d 265 |
| Parties | Carol A. STEINHILBER, R. Theodore Steinhilber, Eric R. Steinhilber and Heidi A. Steinhilber, PPA R. Theodore Steinhilber as her Father and Next Best Friend, Plaintiffs, v. James A. McCARTHY, M.D., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Frederic N. Halstrom, Halstrom Law Offices, Boston, MA, for plaintiffs.
Nancy L. Watson, Ficksman & Conley, Boston, MA, for defendant.
On April 17, 1998, this court entered a final judgment in the above styled medical malpractice case. Thereafter, plaintiffs Carol A. Steinhilber ("Carol Steinhilber"), R. Theodore Steinhilber ("Theodore Steinhilber"), Eric R. Steinhilber ("Eric Steinhilber") and Heidi A. Steinhilber ("Heidi Steinhilber") (collectively: "plaintiffs") filed a timely motion for a new trial under Rule 59(a) ("Rule 59"), Fed.R.Civ.P.1 (Docket Entry # 80). Defendant James A. McCarthy, M.D. ("Dr.McCarthy") opposes the motion. (Docket Entry # 81).
Plaintiffs' five count, second amended complaint raises a claim of negligence and a claim of lack of informed consent, both brought by Carol Steinhilber. The remaining three claims, each separately brought by Theodore, Eric and Heidi Steinhilber, are for loss of consortium due to the negligence of Dr. McCarthy. After hearing six days of testimony, this court instructed the jury on the negligence, lack of informed consent and loss of consortium claims.
In answer to the special verdict questions, the jury found that Carol Steinhilber failed to meet her burden of proving: (1) that Dr. McCarthy was negligent; and (2) that Dr. McCarthy breached a duty to inform her of the significant risks, consequences and options in connection with her medical treatment. In light of the jury's findings and because the loss of consortium claims required "proof of a tortuous act that caused the claimant's spouse or parent ... personal injury," Suarez v. Belli, 1997 WL 39918 at *3 (Mass.Super.Ct. Jan. 13, 1997) (quoting Sena v. Commonwealth, 417 Mass. 250, 629 N.E.2d 986 (Mass.1994); internal quotation marks and brackets omitted), this court entered a final judgment in favor of Dr. McCarthy on April 17, 1998.2
Plaintiffs seek a new trial for three reasons. First, they contend that the verdict is against the clear weight of the evidence because "the jury found no breech (sic) from the standard of care and no breech (sic) of the duty regarding informed consent."3
Second, they argue that they were prejudiced because of this court's refusal to allow them to argue to the jury the absence of certain witnesses at trial. They also contend that the jury instructions were deficient insofar as they omitted an instruction allowing the jury to infer that the testimony of these missing witnesses would have been unfavorable to Dr. McCarthy.
Third, plaintiffs object to this court's instruction with respect to expert testimony. Claiming that the instruction was deficient, plaintiffs proposed two instructions requiring the jury to disbelieve the testimony of Dr. McCarthy's two expert witnesses if they credited the testimony of Carol Steinhilber concerning her complaints to Dr. McCarthy. This court addresses these arguments seriatim after providing a general synopsis of the evidence for context and background purposes.
In June 1991 Carol Steinhilber, a 45 year old woman at the time, had her initial visit with Dr. McCarthy. Prior thereto, she had been seeing a chiropractor for approximately two years. Dr. McCarthy is a board certified neurologist with a practice in Hyannis, Massachusetts.
While the evidence presents conflicting versions of events, it includes the following.4 According to Dr. McCarthy's testimony and office notes, the initial visit lasted approximately one hour. At the time, Carol Steinhilber complained of headaches and neck pain. Dr. McCarthy's records note that, "She dates the onset of her problem to an accident while vacationing in Hawaii in November of 1987." After reviewing x-rays supplied by Carol Steinhilber and conducting an examination, Dr. McCarthy assessed her condition as a chronic cervical sprain and superimposed tension coupled with a finding of being somewhat depressed. He prescribed Elavil at a dosage of 25 milligrams per day5 and set a follow-up visit for one month later.
Dr. McCarthy saw Carol Steinhilber again, together with her husband, in July 1991. She complained of vomiting, possibly related to the Elavil. He prescribed Robaxin, a muscle relaxant, inasmuch as she continued experiencing a chronic cervical sprain.
During the August 1991 visit, she described morning headaches which wore off as the day progressed, according to Dr. McCarthy's notes and testimony. Dr. McCarthy saw Carol Steinhilber again in October and in December 1991. He prescribed physical therapy for her in December and, as noted during her January 1992 visit, the physical therapy was "helping some."
The next office visit took place on March 26, 1992, at which time Dr. McCarthy described Carol Steinhilber as quite depressed. He noted that the physical therapy "helps to some degree but it is only temporary." Dr. McCarthy prescribed a trial of Prozac and noted that she continued to have persistent neck pain. He did not observe a change in her gait at that time, according to his testimony. Nor, according to Dr. McCarthy, did Carol Steinhilber report a change in her vision or her gait during the March 26, 1992 visit.
Dr. McCarthy next saw Carol Steinhilber for an appointment in late April 1992. According to his handwritten notes, she continued to experience headaches. He discontinued the Prozac because of sleeping difficulties and prescribed another course of Elavil at the 25 milligram dosage.
According to Dr. McCarthy's testimony, he initially observed an unsteady gait and slight ataxia during the May 28, 1992 visit. He also described her headaches as more severe and frequent at that time. He testified that during the May 28, 1992 visit he performed a funduscopic examination and observed abnormal venus pulsations in one eye as well as swelling of the optic nerve. Dr. McCarthy's partner, Dr. William F. Johnson ("Dr.Johnson"), also saw something "a little bit funny" upon viewing Carol Steinhilber's eyes, according to Dr. McCarthy.
Dr. McCarthy's notes indicate that he planned to set up an MRI due to these findings.6 His handwritten notes read, in pertinent part, as follows: "Plan — will get MRI." Similarly, his typewritten notes state that, "[b]ecause of these finding[s,] the MRI has been set up for tomorrow."
Records dated May 29, 1992, from Cape Cod Hospital in Hyannis detail Carol Steinhilber's medical history and the findings of a physical examination, presumably conducted by Dr. Albert N. Martins ("Dr.Martins"), the neurosurgeon who performed the subsequent operation. These records describe Carol Steinhilber's symptoms as neck pain and headaches for a number of years, "nausea and vomiting of one month duration" and that, "[m]ore recently, she has developed slurred speech and imbalance of gait." The findings of the May 29, 1992 physical examination reflected in these records also show "[n]o obvious ataxia" and "bilateral papilledema."
On May 29, 1992, Carol Steinhilber underwent an MRI of her brain at Cape Cod Hospital. The MRI revealed a large mass in the right posterior fossa of her brain most likely representing a meningioma which required immediate removal.7 On May 30, 1992, Dr. Martins surgically removed the meningioma.8 Notwithstanding the surgery, Carol Steinhilber presently suffers a vision field deficit in addition to other problems.
Plaintiffs believe that Dr. McCarthy's delay in ordering the MRI and in uncovering the meningioma as the source of her problems was negligent and proximately caused her vision problems. According to plaintiffs, if Dr. McCarthy had ordered the MRI at an earlier date the meningioma would have been removed at a time when it was smaller and, accordingly, Carol Steinhilber would not be experiencing the resulting vision field deficit.
As noted above, the record is conflicting inasmuch as Carol and Theodore Steinhilber's testimony presents, at times, a different version of events. They testified that Carol Steinhilber kept notes of her symptoms. Carol Steinhilber testified that she brought her notes listing her problems with her to each meeting with Dr. McCarthy. She also testified that during the June 1991 initial visit Dr. McCarthy did not take her blood pressure, listen to her pulse or perform any labwork. After the first visit when Dr. McCarthy tested her muscle strength, extension and looked into her eyes, she testified that he never repeated this type of examination until her last visit. Instead, subsequent visits often involved talking about the local real estate market, according to Carol Steinhilber. Dr. McCarthy's medical records for the first visit note that, "This patient has been under a considerable amount of stress over the past few years since she is in the real estate business."
During the August 1991 visit, she testified that she asked Dr. McCarthy for an MRI but he told her that she did not need the test and proceeded to talk about the economy and the local bank problems.9 She further testified that Dr. McCarthy attributed her symptoms to depression and stress at the October 1991 visit.
In or around January 1992 she began experiencing difficulty with her vision and had an incident driving which required her to pull to the side of the road, according to her testimony. By March 1992, she stated that she noticed a balance problem and she recalls telling Dr. McCarthy about her gait. Carol Steinhilber also testified that at the time of the March 1992 visit her symptoms included continuing...
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