97 Mass. App. Ct. 96
Mass. App. Ct.2020Background
- Laura Parsons underwent laparoscopic hiatal hernia repair performed by Dr. Darius Ameri with RN first assistant Louise Pothier; Ameri used an Ethicon Securestrap "tacker" to affix mesh to the diaphragm crura.
- The device deploys fasteners that extend up to 6.7 mm; manufacturer instructions contraindicated use where tissue-to-underlying-structure distance is less than 6.7 mm and warned against deployment in the diaphragm "in the vicinity of the pericardium."
- Two days postoperatively Parsons developed tachycardia and abdominal pain, then suffered cardiac arrest; autopsy found ~250 cc hemopericardium, puncture marks on the posterior heart, acute pericarditis/hemorrhage likely occurring at time of surgery, and concluded death from pericarditis/myocarditis/hemopericardium with tamponade.
- Plaintiff’s expert (Dr. Carmine) testified it was more likely than not that a tacker punctured the pericardium/myocardium during surgery and that using the tacker near the pericardium violated the standard of care; defense expert (Dr. Brooks) attributed death to CPR/anticoagulation/chronic disease and testified the tacks did not penetrate the heart.
- The jury found Ameri and Pothier negligent, found Ameri grossly negligent, awarded compensatory damages and $2.5 million in punitive damages against Ameri; posttrial motions for new trial/JNOV were denied (with minor amendment excluding prejudgment interest on punitive award).
- On appeal the Appeals Court affirmed, rejecting challenges to causation, the sufficiency of evidence of gross negligence, and the trial court’s rulings and instructions (defense objections to the gross-negligence instruction were waived).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether verdict on causation was against the weight of the evidence/new trial required | Parsons: expert and autopsy support that tack punctured heart and caused tamponade, so causation established | Ameri: autopsy/provisional report and post-op stability show CPR/chronic disease caused death; causation not proved | Court: Evidence (expert testimony + final autopsy + photos) reasonably supported jury finding of surgical injury causing death; no abuse of discretion in denying new trial |
| Whether evidence supported gross negligence (punitive damages) | Ameri voluntarily incurred an obvious, well-known risk by using tacker near pericardium contrary to contraindication; constituted heedless/palpable violation | Ameri: routine, accepted use of tacker; warnings are defensive and subject to surgeon judgment; conduct at most ordinary negligence | Court: Reasonable juror could find Ameri ignored explicit contraindication and incurred an obvious, potentially fatal risk; gross negligence submission and punitive award upheld |
| Whether Altman-based instruction on gross negligence was inappropriate in medical-malpractice cases | Parsons: Altman instruction acceptable and was given | Ameri: Altman language unclear for medical cases and should be refined (raised only on appeal) | Court: Issue waived (no timely objection); Altman instruction stands; no plain-error relief granted |
| Whether manufacturer's warnings should have been separately instructed on or excluded as evidence of gross negligence | Parsons: warnings are probative of obvious risk and support gross-negligence finding | Ameri: warnings inexact and surgeon's judgment governs; also argued trial court erred by not instructing on how to use warnings as evidence (raised too late) | Court: Manufacturers' contraindication was admissible evidence and jury could consider it; any request for a special instruction on warnings was waived on appeal |
Key Cases Cited
- Altman v. Aronson, 231 Mass. 588 (1919) (classic definition of gross negligence: "heedless and palpable violation of legal duty").
- Aleo v. SLB Toys USA, Inc., 466 Mass. 398 (2013) (affirming use of Altman definition and discussing waiver of instructional objections).
- Christopher v. Father's Huddle Cafe, Inc., 57 Mass. App. Ct. 217 (2003) (application of the "classic" gross-negligence instruction).
- Matsuyama v. Birnbaum, 452 Mass. 1 (2008) (gross-negligence jury submission in medical context where doctor ignored known risks over years).
- O'Brien v. Pearson, 449 Mass. 377 (2007) (standard for reviewing denial of new trial/judgment notwithstanding the verdict).
- Palandjian v. Foster, 446 Mass. 100 (2006) (elements of medical malpractice: standard of care, breach, and causation).
- Glicklich v. Spievack, 16 Mass. App. Ct. 488 (1983) (proof of causation requires more than possibility; must be by preponderance).
- Lynch v. Springfield Safe Deposit & Trust Co., 294 Mass. 170 (1936) (common indicia of gross negligence: voluntary incurring of obvious risk, persistent palpably negligent conduct).