Medical Malpractice Appeal Leads to New Trial in Massachusetts Superior Court

courtcolumns.jpgAn appeal by a plaintiff in a medical malpractice case involving a failure to diagnose cancer has led to a new trial. The Appeals Court reversed the directed verdict, entered by Superior Court Judge Patrick Brady, after finding that the judge had improperly allowed the defendant’s motion for a directed verdict.

The case arose from the treatment of a patient who was having complaints of hoarseness and acid reflux. After several months of delay, a CT scan on the neck was finally performed, which revealed the presence of tumor near the esophagus and in the lung; the tumor was affecting the nerves which controlled the vocal cords. A biopsy revealed a non-small cell cancer which was staged at Stage 3B. Treatment was unsuccessful, and the patient died a year and a half later.

Claims were brought for medical malpractice resulting in conscious pain and suffering, wrongful death, and negligent infliction of emotional distress, among others. At trial, the plaintiff’s expert was prepared to testify that if it had been diagnosed in a timely manner, the cancer would have been at Stage 2 or possibly Stage 1. Judge Brady would not permit the testimony of “possibly Stage 1” and eventually foreclosed any meaningful expert testimony on his opinion about the stage of the cancer. Those rulings set the stage for the judge’s allowance of the defendant’s motion for a directed verdict.

On appeal, the Massachusetts Appeals Court found that the testimony about the tumor being “possible Stage 1” was properly excluded, but that the testimony about the tumor being likely Stage 2 was improperly excluded. Accordingly, the judge’s ruling was reversed, and the plaintiff will now have a second chance at trial.

The Appeals Court also recapitulated the necessary evidence for cases involving the loss of a chance when a physician fails to diagnose cancer. Loss of a chance cases require opinion evidence on the stage of the cancer at the time the diagnosis should have been made. The evidence does not require exact staging; a range of stages is permissible. Also required is evidence on the likelihood of survival after a timely diagnosis. The evidence must include an opinion about the difference in likelihood which more probably than not resulted from the delay. Citing Matsuyama v. Birnbaum, 452 Mass. 1 (2008), the Court noted:

    Under a loss of chance theory, a “plaintiff must prove by a preponderance of the evidence that the physician’s negligence caused the plaintiff’s injury, where the injury consists of the diminished likelihood of achieving a more favorable medical outcome.” Id. at 17. The court explained: “[P]robability of survival is part of the patient’s condition. When a physician’s negligence diminishes or destroys a patient’s chance of survival, the patient has suffered real injury. The patient has lost something of great value: a chance to survive, to be cured, or otherwise to achieve a more favorable medical outcome…. Thus we recognize loss of chance not as a theory of causation, but as a theory of injury.” Id. at 16.

The case decided was Carreri v. Isihara, Mass.App.Ct. No. 10-P-109 (August 25, 2011).

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Massachusetts Judges Moving Towards Expanded Voir Dire

Good news for trial advocates and their clients: Massachusetts courts are continuing to expand voir dire of prospective jurors. But Massachusetts state courts still lag behind courts in other states when it comes to screening citizens for possible selection on juries in our civil and criminal trials. The vast majority of states outside of the commonwealth permit a process whereby the judge and the attorneys inquire of potential jurors regarding their attitudes and beliefs on issues involved in the case. This process, called voir dire, is an important tool for identifying individuals who may have strong feelings or biases which would prevent them from fairly deciding the issues in the case.

Until recently, most judges in the Massachusetts state courts would simply ask a series of vague and basic questions to the entire prospective jury panel, which, in essence, asks the individuals to evaluate whether or not they can be fair and follow the court’s instructions. The system had one advantage: it was fairly quick. But the basic statutory questions are notorious for failing to eliminate potentially biased jurors.

States such as Rhode Island and New York permit extensive questioning by attorneys in the case directly with the prospective jurors. Voir dire in those states allows the attorneys on both sides to ensure that jurors with potential bias are not seated in the case.

In the last five years, the majority of judges in Massachusetts have begun a modified approach called “individual voir dire.” These judges bring each prospective juror to the side bar where the judge questions them about their beliefs and attitudes related to the issues in the case. Some of these judges allow attorneys to ask questions in follow up. Others allow attorneys to conduct the entire voir dire process. Most judges have found that this process is as efficient and expeditious as the old standard questions approach. In those cases where the process takes a little longer, there is the benefit of having a better jury for the case.

Under the new approach, judges are asking open-ended questions designed to encourage prospective jurors to express their feelings and beliefs. The basic premise of voir dire is that not every citizen is right for every case. For example, the parent of three young girls might not be an appropriate juror for a criminal case involving sexual assault on a minor. Similarly, an individual who feels there are too many frivolous lawsuits, might not be appropriate for a significant personal injury trial.
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